Does getting Divorced affect my Will?
Short answer – yes, it does. But perhaps not in the way you may have thought.
Unlike marriage, divorce does not automatically revoke your entire will in Victoria. Instead, it does something more surgical and potentially just as consequential.
What is the Legal Position?
Under section 14 of the Wills Act 1997 (Vic), once a marriage is dissolved by a court order, any gift left to your former spouse in your Will is automatically revoked.
Any appointment of your former spouse as executor and trustee is also revoked, other than an appointment of your ex-spouse as trustee to manage property left in your Will to children of your relationship together.
The rest of the document remains intact. Whether that’s a relief or a problem depends entirely on what else is in your Will.
What does This Mean in Practice?
• If your former spouse was your sole beneficiary, your estate may now pass under the intestacy rules - or to whoever’s next in line in your will (if your will contemplates this). Many simple Wills and DIY Wills don’t.
• If your former spouse was named as your executor, you may now have no named executor at all. That means someone will need to apply for Letters of Administration with the Will annexed. This can add additional time, costs, and stress for your family.
• Critically, separation alone does not trigger any of these changes. The legal effect of Divorce on your Will only kicks in upon the formal dissolution of the marriage. If you separate but never divorce, your existing will stands, former spouse and all. This too can result in considerable time, cost and stress if your surviving family decides to contest your Will or apply for further provision from your Estate but this comes with a raft of other considerations and difficulties.
Why does this Matter?
Divorce changes your Will in part, but it cannot make your will reflect your new life. It cannot add new beneficiaries, appoint a new executor, or account for assets acquired after separation. It simply removes your former spouse from benefiting. In some circumstances, this means there may be a partial intestacy or total intestacy.
A new Will, made after divorce and which has been validly executed, is the only way to legally make known where you actually want your assets to go and to have them managed by someone you trust.
Given the emotional and financial turmoil that often accompanies a separation and a divorce, it’s really important to make sure that your Will reflects your current wishes, so you can protect your loved ones and your new life.
