Divorce doesn’t invalidate your existing will, but can have major effects on the distribution of your estate. Ending a marriage or de facto relationship can be extremely distressing for both parties and the extended family. During this emotional turmoil, the need to update Wills following divorce is easily overlooked.
How divorce affects an existing Will
If you terminate your marriage, any part of your Will that favours your former spouse will be void.
- Any beneficial gifts allocated to your former spouse in the Will
- Appointments of the former spouse as an Executor, Trustee or Guardian.
Are there any parts in my Will that aren’t affected by divorce?
There are circumstances where divorce won’t affect the certain aspects of your Will. These include:
- Appointment of the former spouse as trustee of property left on trust for the former spouse’s children
- Power of appointment exercised by the former spouse exclusively for children who are children of both the testator and the former spouse.
- Gifts, appointments or grants of powers of appointment if “a contrary intention appears in the Will
- Eligibility for a former spouse to seek a family provision order under the Succession Act
- Any direction, charge, trust or provision in the will for the payment of any amount in respect of a debt or liability of the testator to their former spouse, or to the executor or the administrator of the estate of the former spouse.
Power of Attorney
Surprisingly, a divorce does not render a Power of Attorney invalid in New South Wales. It is extremely important that upon divorce any Power of Attorney given to your former spouse is formally revoked. A power of attorney can be revoked at any time as long as you still have mental capacity.
It is crucial to review your estate planning after any significant change in your family circumstances.