The Effect of Divorce on Your Will

We have received some enquiries recently regarding the effect of divorce on your existing Will.

Termination of marriage does not revoke the whole of your Will but only that part of the Will that operates in favour of your former spouse.

Under Section 13(1) of the Succession Act 2006 (NSW), if a person makes a Will and their marriage is later terminated (by divorce or annulment) then:

• Any beneficial gift in favour of the former spouse made in the Will are revoked at the time of divorce; and
• Certain appointments of the former spouse under the will are revoked. This includes revoking the appointment of the former spouse as an Executor, Trustee or Guardian.
   

Exceptions

The termination of the testator’s marriage does not:

• revoke the appointment of the former spouse as trustee of property left by the will on trust for the former spouse’s children; or
• revoke the grant of a power of appointment exercised by the former spouse exclusively for children who are children of both the testator and the former spouse.
• revoke gifts, appointments or grants of powers of appointment if “a contrary intention appears in the Will”.
• prevent a former spouse of a testator seeking a family provision order under the Succession Act; or
• affect any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or the administrator of the estate of the former spouse.

The word “promise” is not defined in the Act. However, it has previously been defined as including any statement or representation of fact or intention. The object is not to affect any liability of a testator under a promise made to a former spouse or that spouse’s legal personal representative. For example, a contract not to revoke a will would not be revoked by a divorce or the annulment of a marriage.

Effect on the existing Will

The effect of the revocations is that the Will takes effect as if the former spouse had died before the testator (Section 13(4) of the Act). Interestingly, Section 13 only refers to marriages, and not de facto relationships.

Here are some meanings of terms used above:

“testator” refers to the person making a will.

“annulment” in relation to a testator, means:

• the annulment of the testator’s marriage by the Family Court of Australia, or
• the annulment of the testator’s marriage under a law of a place outside Australia, if the annulment is recognised in Australia under the Family Law Act 1975 of the Commonwealth.

“divorce” means the ending of a marriage by:

• a divorce order in relation to the marriage taking effect under the Family Law Act 1975 of the Commonwealth, or
• a decree of nullity in respect of the marriage by the Family Court of Australia, or
• the dissolution of the marriage in accordance with the law of a place outside Australia, if the dissolution is recognised in Australia under the Family Law Act 1975 of the Commonwealth.

“spouse” includes a party to a purported or void marriage.

“testator’s former spouse” means the person who was the testator’s spouse immediately before the testator’s marriage was ended by divorce or annulment.