In most jurisdictions in Australia, except Western  Australia, the whole  Will (in the case of Tasmania) or  certain provisions contained in the  Will (in other States),  are revoked by the divorce or annulment of  the  marriage.

Western Australia

In Western Australia, a Will made before a divorce will  continue until it is actually revoked by the Will  maker. This is particularly dangerous if a person dies  after a divorce and property settlement, but has not  changed their Will.

Queensland, New South Wales, Victoria, ACT, South Australia and Northern Territory

A summary of the law in all jurisdictions except Tasmania and Western Australia, is as follows:

1. Upon divorce, any provision for the Will makers former spouse is revoked;
2. With some exceptions, any powers of appointment exercisable by a former spouse are revoked;
3. With some exceptions, the appointment of the former spouse as executor, trustee or guardian is revoked.  In Victoria, Queensland, the Northern Territory and New South Wales, a former spouse can still be trustee for property where the beneficiaries include the children of the spouse;
4. If a Will maker leaves a specific gift or legacy to the former spouse, that gift will form part of the balance of the estate as it will be deemed to have lapsed;
5. All provisions relating to revocation are subject to a Court being satisfied that the Will maker had the intention of actually leaving gifts or part of the estate to the spouse to the former spouse;
6. In the ACT and South Australia, if the Will maker executes a document to confirm the Will, generally there will be no revocation;
7. In New South Wales, the ACT and South Australia, a former spouse can still make a claim for family provision.

Tasmania

The effect of the Tasmanian Legalisation is that the whole of a Will is revoked by divorce.  In other states, only provisions relating to the former spouse are revoked.  The effect of the Tasmanian Legalisation is that all gifts will fail, including provisions relating to guardianship and the disposal of the Will makers body.

What should I do if I have separated and I am contemplating divorce?

It is imperative that anyone who is contemplating divorce seek advice from a lawyer who specialises in estate law so that your Will is property drafted to reflect your current circumstances and your wishes.

Please contact me if you have any further questions at all in relation to what happens to your Will after your divorce.