What does the legislation say?
Section 13 of the Succession Act 2006 deals with what happens to a Will in NSW when you get a divorce or an annulment.
The divorce of a testator or annulment of his or her marriage revokes:
- a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment, and
- an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will, and
- a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse.
A beneficial disposition
A beneficial disposition simply means leaving something to the spouse in the Will. In existence at the time of the divorce means it was written before the divorce.
An appointment of the former spouse
If the former spouse was the executor, trustee or guardian under the Will then it is assumed that the divorce revokes this appointment. Very few Wills grant a power of attorney anymore that is done with a separate document, but this would also be revoked. The legislation provides however that if the former spouse is appointed trustee over assets that are held for the benefit of their joint children, so a classic Mum and Dad leaving everything to their kids type of Will, then the surviving ex-spouse can act as trustee for the children (but not executor).
So do I have to update my Will?
In Australia, you can only apply for a Divorce 12 months after you have separated from your spouse.
If you have separated from your spouse and previously made a beneficial disposition to your spouse, but have not been granted a Divorce, the beneficial disposition or appointment as executor/executrix will not be revoked.
However once you are divorced you will need to update it. You can also prepare a Will specifically in anticipation of divorce, so you don't have to wait until the divorce is finalised.
Whilst you are updating your Will you should also review your superannuation nomination to either update or make a binding nomination. If you do not update your binding nomination, the Superannuation Trustee may pay the benefit to your former spouse.
If you bring your Will with you to the appointment and it turns out that you don't need it updated then we won't charge you.
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I need to update my Will
If you need to update your Will, or think you might need to update your Will, then you should make an appointment to see Hamish Williams. He is our Estate litigation practitioner so he knows what happens when an Estate isn't property prepared. He can help you with all your Estate planning needs.