What happens to my will when I divorce or separate from my spouse?

By Teigan Hutchison

Divorce and separation are complex issues that can have significant emotional, and legal ramifications.

The Family Law Act 1975 (Cth) (‘Family Law Act’)[1] serves as the primary legislation for the dissolution of marriage or de facto relationships and the resolution of disputes related to property, children, and financial matters in the Australian jurisdiction. Notably, within New South Wales, the Succession Act 2005 (NSW) (‘Succession Act’)[2] contains provisions that may result in implications for the wills and succession after the death of parties that intend to separate and for those who have already divorced.

The Succession Act and Divorce or Separation

The Succession Act is state-based legislation that governs the distribution of property after a person’s death. The Succession Act contains the rules of intestacy, which prescribes how a person’s estate is distributed if they die without a valid will. Intestacy is a broad concept under the act that follows a statutory provision as to who will be vested wholly or partly of an intestate estate after death. With respect to the surviving spouse(s) of the deceased, ss 104 & 105 applies to establish the legal nature of the relationship between any surviving spouse(s) and the deceased.[3] For example, certain circumstances may arise where the deceased is both survived by a separated spouse but not divorced and another who they are deemed to be under a ‘domestic relationship’. In this instance, ‘multiple spouses’ may be entitled to the intestate estate and effectively share the whole of the intestate estate.

However, when a valid will is present, separate legal provisions under the Succession Act are followed. These are followed by:

Revocation of the will upon marriage;
Revocation upon termination of marriage; and
Entitlement of separated spouses and de facto spouses under a family provision claim.

The provisions vested under the Succession Act will only be valid if the relationship is terminated by divorce. Separation without divorce are followed with different provisions under the Succession Act and is different from divorce or annulment.

My partner was never on my will, does this apply to me?

When partners decide to formalise their relationship and marry, the legal provision of s 12 of the Succession Act takes effect. If, prior to marriage both parties have previously executed wills, under s 12(1) the effect of marriage will revoke both parties’ respective wills.[4]

However, certain circumstances of the marriage may be present that may effectively alternate the validity of s 12(1), such as cases of void marriages[5] and certain foreign marriages.[6] Further, s 12(2) outlines statutory exceptions where certain dispositions of a valid will, will not be revoked by the consummation of marriage. If, after the marriage the testator/testatrix (the person making the will) have not redrafted a new will, the marriage will not revoke:[7]

A disposition to the testator/testatrix’s spouse at their time of death;
Naming the testator/testatrix’s spouse upon their death;
A will executing a power of appointment, where the property would not go to the executor or Trustee if the power wasn’t exercised.

It is important that once marriage occurs for both spouses to effectively presume their previous wills prior to the marriage to be revoked and seek advice in drawing up a fresh will.

Revocation of gifts in marriages

Section 13 of the Succession Act provides that a divorce or annulment of a marriage revokes any gifts made by the testator/testatrix to their former spouse.[8] Effectively, the former spouse will be deemed under the will as if the former spouse predeceases the testator/testatrix.[9] This means that if a person makes a will while they are married and subsequently divorces, any gifts made to their former spouse under the will are automatically revoked. However, any remaining disposition in the will, remains valid, and any gifts made to other beneficiaries will still be enforceable.

Further revocations vested upon termination of a marriage under s 13 of the Succession Act states that any appointment of the former spouse as an executor or trustee of the testator’s/testatrix’s estate is revoked upon divorce or annulment of a marriage.[10] This implies that the appointment is automatically cancelled if a person names their spouse as the executor or trustee of their estate in their will and afterwards gets divorced. The remainder of the will is still enforceable, though, and the court will name a substitute executor or trustee if required. In this instance, a grant of probate will not be made by the court but instead a letters of administration will be granted due to the lack of valid executors remaining in the will. This is typically avoided if under the will a clause is vested such that an alternative executor(s) is/are to be appointed in the event the original testator loses capacity.

Therefore, the Succession Act may ensure that a person’s estate is distributed according to their wishes, even if their circumstances change after making their will. It can also prevent a person’s former spouse from potentially inheriting a gift from their estate or being appointed as an executor or trustee. However, certain circumstances may arise where a former spouse attempts to seek a share of the deceased estate under a family provisions claim.

Will these provisions apply in my circumstances?

It is important to note that the provisions of the Succession Act only apply to wills made after 1 March 2008. If a person made a will before this date, different rules may apply, such as the succeeded Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act’).[11]

In addition to the Succession Act, other legislation may impact how a person’s estate is distributed after a divorce or separation. For instance, the Family Law Act permits parties to file a claim against their ex-spouse’s assets if they can show that they were not sufficiently taken care of in their ex-spouse’s will.[12] This is known as a “family provision claim,” which can be claimed by spouses, de facto partners, kids, and other dependents.[13] We have discussed the general matters of a “family provision claim”, please see this “link” to be directed to our publication on “family provision claim”. However, briefly, a family provisions claim effectively contests the will when a party, whom has been in previous relation with the deceased, believes they have not received adequate or proper provisions and wish to claim more of the estate or at all. In these instances, a former spouse or a separated spouse have legal right to seek the court to contest the will, but decisions are commonly decided on a case-by-case basis looking into the relationship and circumstances between the deceased and the claiming party.

In the event a former spouse wishes to seek proceedings, the court will look at past and present circumstances whether there is a need to make an application.[14] This is to determine whether there are factors that warrant the making of the application.[15]

When the spouse of the deceased takes family provision proceedings the court generally favours their position. Consequently, in O’Loughlin v O’Loughlin, the claims of a spouse will prevail over those of at least adult children of the deceased.[16] Additionally, in circumstances where the estate can bear the finances, provision may be made to allow a spouse to live the lifestyle they had been accustomed to while the deceased was alive.[17]

In the case of Goodman v Windeyer, it determined various factors which can influence the claim of a spouse regarding the deceased’s estate:[18]

The behaviour of the spouse towards the deceased, for example caring for while ill;
That the significance of the benefit provided to the spouse need not be monetary in value;
The emphasis that the size of the estate will determine a ‘proper’ provision; and
A wise and just testator would consider future contingencies.

The influence of claim of spouses was further emphasised in Bingham v Forrest:

Testamentary freedom is only disturbed when necessary to make ‘proper’ provision;
It is not the role of the court to correct hurt feelings and to only remedy inadequate provisions;
Testator/testatrix must ensure unforeseen contingencies are met by their surviving spouse;
The nature and quality of the relationship and the conduct of the claimant;
The size of the estate and the strength of other competing claims; and
Contributions to the property or welfare of the deceased.

Though, these common law provisions outlining what may be considered by the court appear as legal precedents, it must be noted that matters of family provision claims are taken on a case-by-case basis. There is heavy reliance as to what the claimant has received proper or adequate provisions based on their relationship with the deceased and the size of the estate.

Conclusion

In Australia, the succession of property post-death, particularly in divorce or separation are guided by the Family Law Act and Succession Act respectively. The latter being the distribution of assets when there’s no valid will and in cases of a valid will, dictates revocation upon marriage or termination of it. It also addresses entitlements of separated and de-facto spouses in circumstances where divorce or annulment takes place in the relationship. Family provision claims permit claims on an ex-spouse’s assets after death if insufficient provisions were made in their will, where typically the court will hold different views what may determine an adequate or proper provision to the claimant. Importantly, the Succession Act only applies for wills made after 1 March 2008; and different rules may apply for earlier wills.

This article is not meant to act as legal advice and serves the purpose of providing academically generalised information regarding provisions imposed on a will in cases of divorce or separate. Please note that if you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 0232 8033 today to make an enquiry.

[1] Family Law Act 1975 (Cth) (‘Family Law Act’).

[2] Succession Act 2005 (Cth) (‘Succession Act’).

[3] Ibid ss 104 & 105.

[4] Ibid s 12.

[5] Will of Dawson (1948) 65 WN (NSW) 91.

[6] In the Estate of David Brian Coomber [2014] SASC 37.

[7] Succession Act (n 2) s 12(2).

[8] Ibid s 13.

[9] Ibid s 13(4).

[10] Ibid s 13.

[11] Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act’).

[12] Family Law Act (n 1).