Question: What effect does divorce have on a Will? What happens if you were in a civil partnership or a de facto relationship?
Answer:
Divorce
In New South Wales, section 13 of the Succession Act 2006 (NSW) provides that divorce or annulment of marriage revokes any gifts made by the deceased to their former spouse under a will. Any appointments of the former spouse as the executor, trustee, advisory trustee, or guardian under the will are also revoked. However, if a contrary intention appears in the will, then the appointment and gifts are not revoked.
In Queensland, section 15 of the Succession Act 1981 (QLD) provides that divorce or annulment of marriage revokes any gifts made by the deceased to the former spouse and any appointments of the former spouse as the executor, trustee, advisory trustee, or guardian. However, a divorce or annulment between the testator and former spouse will not revoke the appointment of the testator's former spouse as the trustee of a trust created for a testator's beneficiaries that include the former spouse's children. While this does not mean that the former spouse has any right to benefit from the testator's estate, they would still maintain control of part of the Estate.
Civil Partnership or De-facto Relationship
In New South Wales, separating from a de facto relationship does not automatically override a will.
However, in Queensland, the ending of a civil partnership does have the same effects as divorce or annulment under section 15A of the Succession Act 1981 (QLD). The same applies to the ending of a de facto relationship under 15B of the Succession Act 1981 (QLD).
Tax Tip:
As soon as you have a relationship breakdown, it is important that you seek legal advice in relation to reviewing your estate planning documents. If you are married, separation alone will not automatically revoke your will, it is only once you are divorced that revocation takes place in both New South Wales and Queensland. A couple must be separated for a period of 12 months prior to applying for a divorce.
If you were to separate from your ex-spouse and pass away prior to the divorce being granted, your ex-spouse would still receive any gifts made to them under your estate if you have not updated your estate planning documents.
Therefore, it is best practice to update your estate planning documents after any separation has occurred with your partner.
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