the general rule is that divorce will revoke provisions in favour of the former spouse.
the former spouse can still prove in court that the testator intended for the former spouse to have a share of his estate.
A will is a legal document that provides how the estate of a person will be disposed upon his death. The will can contain disposition of the assets to specific person, donations to charitable institutions, trusts, and specific instructions like funeral arrangements, payment of debts or care of certain persons.
A will remains valid until it is revoked by the testator or by operation of law. Divorce, by operation of law, can cause the automatic revocation of some parts of the will and in Tasmania the entire will itself is revoked.
A person becomes divorced one month and one day after the court issues a divorce order. However, before applying for a divorce the applicant must consider the effect of the divorce upon his will. It is recommended that when a person seeks legal advice for divorce he will also include asking how the divorce will affect his will.
The effect of divorce on a will is governed by the different laws of the states and territories in Australia. However, there are certain common effects with respect to Queensland, ACT, South Australia, New South Wales and Northern Territory.
The following are the said common effects:
- The divorce will automatically revoke a provision in the will for the former spouse.Upon divorce, the appointment of the former spouse as executor, trustee or guardian is revoked.
- Subject to certain exceptions, appointments bestowed upon the former spouse are generally revoked by the divorce. Any gift or legacy to a former spouse, because of the divorce, will form part of the balance of the estate.
- In Western Australia, the divorce has no effect at all on the will. It will continue to be in effect until it is specifically revoked by the will maker.
- For Tasmania, the will in its entirety will be revoked upon the divorce. So, even provisions that are unrelated to the former spouse cannot be enforced since the entire will is revoked by the divorce. Spouses considering divorce must also consider drawing up a new will before a divorce order is issued by the court.
- In ACT and South Australia, there will be no revocation if the will maker executes a document that affirms the will. So before the divorce becomes final, the testator must execute a document stating that the will will continue to be valid despite the divorce.
- In ACT, NSW and South Australia, the former spouse can still petition for a family provision. So, for former spouses in these areas there is still hope that they might be able to make a claim in spite of the effects of the divorce.
- In Victoria, Northern Territory, New South Wales and Queensland if the trust set up by the will makes the children of the former spouse as the beneficiaries then the former spouse can still be a trustee. The same applies to any power of appointment given to the former spouse if it is in favour of the children of the spouses.
There is still a glimmer of hope for former spouses who want to make a claim despite that the divorce has revoked a provision, gift, trust, legacy, or power of appointment in their favour. They can still prove to the Court that despite the divorce the testator intended for the former spouse to have a share of his estate.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.