Marriage, separation, and divorce can profoundly impact your Will, often altering how your estate is distributed. Significant life events such as entering a de facto relationship, ending a marriage, or separating from a partner should prompt a review of your Will immediately to ensure it reflects your current wishes and relationships.
In Victoria, these life events may void parts of your Will, such as bequests to a former spouse, or render the entire Will invalid in certain circumstances. For instance, when you marry, your existing Will is usually revoked unless it was explicitly made in contemplation of marriage. Likewise, separation from a de facto partner or spouse may alter inheritance rights, even before a divorce is finalised.
In the recent Supreme Court of Victoria case Re Sampson [2024] VSC 351, the Court examined unique circumstances to determine the intentions of the deceased. The former spouse of the deceased was appointed as executor of the estate, a role that remained despite the couple’s divorce four years prior to the husband’s death.
Understanding how divorce may affect your Will in Victoria
It is generally thought when parties separate and especially after they divorce any pre‑existing Will is automatically invalidated. This is not the case when you separate and are not yet divorced, which is why it’s so important to keep your Will current.
- Divorce generally affects your Will, revoking any parts that mention your former spouse. But you cannot Divorce until 12 months from the date of separation so you should update your Will immediately after separation.
- The Wills Act 1997 (Vic) governs the revocation of Wills following divorce.
- It’s essential to update your Will after separation to ensure your wishes are carried out.
- Divorce can also affect your estate plan, including property settlement and clauses relating to your former spouse.
We will examine the Supreme Court of Victoria case Re Sampson [2024] VSC 351 more closely to get a better idea of how the court may decide to assess a Will after a divorce.
Impacts of marriage or separation on estate planning
Marriage and separation may not automatically revoke your Will, and it can remain valid if a deceased person has made an intention clear to have it remain as it was previous to a divorce or separation. If left intact, your separated spouse may inherit property or remain the trustee of the property left, even after your relationship status changes, depending on the surrounding circumstances.
It’s crucial to keep your Will aligned with your wishes to avoid unintended consequences for family members, such as children from a previous relationship. Always seek legal advice to ensure your estate reflects your changed circumstances, especially if you plan to remarry or have done so. Many Australians overlook this important legal matter, leading to disputes over their estate after death.
Ensure your Will is clear after a divorce or separation
Estate planning during separation and divorce can be challenging, but proactive measures ensure your wishes are upheld. Whether you’re ending a marriage, separating from a de facto partner, or entering a new relationship, regularly updating your Will is critical to safeguarding your estate and loved ones.
The law aims to ensure your estate is distributed in line with your current intentions and relationships. However, these changes can lead to disputes, particularly if there are children from a previous marriage, a property settlement underway, or a person nominated in your Will is no longer relevant due to the relationship breakdown. Regularly updating your Will is vital to avoid confusion and to ensure your wishes are considered valid after significant life events.
Can a former spouse inherit?
Yes, they can, but it will depend on their ex-spouse’s wishes.
- If property or assets have been specifically left to your ex-partner or ex-spouse, he or she will inherit all of this money and assets even if you are legally separated. If this was due to a Will not being updated, the Will may still stand, depending on the circumstances.
- If you die without a valid Will, your assets will be distributed following the rules of intestacy – which means your ex-spouse could inherit your whole estate if you are not divorced.
The Supreme Court’s Decision – Re Sampson [2024] VSC 351
In a recent decision of the Supreme Court of Victoria Re Sampson [2024] VSC 351, the Court looked at the particulars and unusual facts and circumstances of that case and concluded that the former spouse of the deceased was to continue as executor of the deceased’s estate as this was consistent with the intentions of the deceased.
Briefly, the facts of the case were:
1. The parties were married 20 years and divorced in February 2018 (four years before the husband’s death);
2. The deceased had made a Will in November 2016 (two years before divorce);
3. The deceased was survived by a brother and two adult children;
4. The deceased appointed his former wife as executor of his estate in his 2016 Will;
5. The Wills Act 1997 provides that a divorce revokes any appointment of the divorced spouse as executor or trustee of the estate, but if a contrary intention of the testator can be proven (i.e., that they did not want the appointment to be revoked upon divorce), then the appointment could continue.
Contrary intention is to be gathered from extrinsic evidence to demonstrate the deceased’s intention in the period leading up to their death.
In this particular case, the Court found that there was such extrinsic evidence to demonstrate a contrary intention because, although the parties had separated and had a property settlement, they were amicable, had rebuilt their friendship and cooperated and communicated well to co‑parent their son. The former wife had also executed a Will three months prior to the deceased having made his Will, and she appointed him as executor of her Will, even identifying him as her “former husband”.
In the weeks leading up to the deceased’s passing, he had a telephone conversation with his brother during which he confirmed that he was happy with his estranged wife having been appointed as executor and that he had had dinner with her and their son in the weeks prior and they fully understood what was to happen if he was not to survive the operation.
The deceased had written four letters contemplating his upcoming surgery addressed to his former wife, his brother, and each of his children to be opened upon his death. These letters disclosed that he referred to his former wife as trustee of his Will and provided her with details of his usernames and passwords for his trading, banking, and superannuation accounts.
The Court concluded that it was satisfied that the deceased did not want his appointment of his former wife as executor of his estate to be revoked upon the ending of their marriage, that it was consistent with his intention leading up to his death that she remain as executor of his estate and probate was granted to the former spouse accordingly.
As with other matters, each case depends on its own facts, and ultimately, the Court has the discretion to make Orders which it deems appropriate and necessary given the individual facts and circumstances of each case.
Updating Estate Planning Documents After Divorce
If your relationship status has changed significantly or your wishes have changed, it’s important to update your current Will or create a new Will to reflect your intended wishes.
Make sure to:
- Update your beneficiaries to reflect your current wishes.
- Remove your ex-spouse from any beneficiary designations and include new beneficiaries as needed, or make it very clear that the Will stands despite divorce or separation.
- Update your estate planning documents to ensure they align with your current situation and preferences after a divorce.
- Review any other estate planning documents, such as your power of attorney and advance care directive.
To ensure your estate aligns with your current wishes, it’s essential to review and update your Will after life events such as marriage, separation, or divorce. Failing to update your Will after these changes can lead to unintended consequences, such as a large portion of your estate being awarded to a former spouse. To avoid disputes and ensure your intentions are honoured, it’s vital to understand how family law, including marriage and divorce, affects your Will and estate planning.
Seeking Professional Advice
The team at Pearsons Lawyers can help you understand estate planning in the context of family law, ensuring your Will reflects your current circumstances, including separation, divorce, or entering a de facto relationship.
We assist with obtaining Grants of Probate or Letters of Administration, addressing claims by former partners, or ensuring the distribution of your estate aligns with your wishes. Whether you’re formally divorced, remarried, or in a new spouse arrangement, we’ll ensure no appointment exercisable is overlooked.
If you’re unsure how separation, divorce, or a new relationship may have an effect on Will, then we recommend that you seek expert legal advice. Contact our wills lawyers today to review or update your Will and secure your legacy.
