Does getting Married, Separated or Divorced invalidate a Will?

Marriage, separation and divorce are undoubtedly some of the most significant moments in our lives. And, they also have a very significant impact on the legal aspects of your life – especially your Will and your estate planning.

As the intergenerational wealth transfer we’re seeing across Australia is picking up speed, inheritance is becoming bigger and more important than ever, and it’s helpful to know the ins and outs when it comes to relationships and, of course, marriage and divorce.

Here, we’ll answer questions like, ‘Does marriage revoke a Will?’ and take a closer look at the effects of marriage, separation, and divorce on your last Will and your estate planning.

Does marriage revoke a Will?

Yes it does, unless your Will is crafted in a very specific way. Section 14 of the Wills Act 1970 (WA) states that in the case of marriage, the Will of the testator (also known as the Will maker) is revoked, unless:

• It is made in contemplation of the marriage;
• The Will is made in exercise of a power of appointment (where the property would not fall into the hands of the testator’s appointer); and 
• Where the marriage is not legally recognised.

The words ‘contemplation of the marriage’ mean that the Will maker did so with the intention or in anticipation of a marriage, or if any evidence suggests that the Will was made in anticipation of marriage. 

What about subsequent marriages?

The same rule applies if you get married again. The new marriage will revoke your existing Will unless it is expressed to be in contemplation of marriage. If you have recently married or remarried, it’s likely that your Will is now invalid and it’s critically important to update your Will to reflect the changes in your personal life. This will remove any confusion or possibility of an invalid Will upon your death.

What does a de-facto relationship mean for a Will?

In Western Australia, de-facto relationships are defined as two people who are living together in a marriage-like relationship without being legally married. The term “de-facto” is derived from ‘of fact’ which essentially means that you behave like a married couple, but are not. 

The existence of a de-facto relationship will impact your considerations when making your Will, in that a de-facto partner is treated in a similar way as a married spouse under the relevant inheritance laws. As the Will-maker, you have a moral obligation to adequately and properly provide for your de-facto partner in the same sort of way you have a moral obligation to provide for your married spouse (and sometimes, where someone is legally married and also in a de facto relationship, you can have both). 

If you die without a Will and do not adequately provide for your de-facto partner, it can often cause a raft of issues for your surviving de-facto partner if there are surviving children from a previous relationship; your surviving de-facto partner now has the onus of proving that the de-facto relationship existed (if this is disputed by other surviving family members). The usual indicators of the existence of a de-facto relationship are set out in section 13A of the Interpretation Act 1984 (WA).

Similarly, if you’re in a de-facto relationship that breaks down and you have made provision in your Will for your previous de-facto partner, this could have massive implications for your Will (for example, if there are children who may contest the Will). 

A key case here is Blyth v Wilken, where the WA Supreme Court found in 2015 that the way the Will described the gift determined whether it was transferred to the de-facto partner following the death of the testator. 

The outcome of this ruling put de-facto couples in the spotlight. If you’re ending a de-facto relationship, make sure you review your estate planning arrangements to ensure your gifts or transfers are honoured or removed from any Will.

Separation and its impact on a Will

Separation from your married spouse is a difficult time for anyone, and it’s important to know what the legal ramifications are when it comes to your Will. From the moment you separate until you actually finalise the divorce by obtaining an order from the Family Court, your Will remains valid and unchanged simply due to the separation.

Sometimes spouses remain separated for many years before they finally apply for and finalise a divorce. During this time, unless a Will is revoked, it will remain valid. In cases where a spouse passes away before the divorce is settled and final orders are made, your former spouse may still be entitled to a portion of the estate. 

Separated couples – married or de-facto – need to ensure their Wills are updated to reflect their current circumstances. If you’ve recently separated, it’s important you contact a qualified legal practice with dedicated Will solicitors who can look into your individual case. 

Divorce and Wills: what to expect

Like marriage and separation, divorce also plays a critical role in whether your Will is valid or not. 

In Western Australia, the Wills Act 1970 states that a divorce order made after 9 February 2009 will invalidate a Will. There are, however, some key exceptions to this rule. One of these exceptions is when your Will clearly indicates that it is being made in ‘in contemplation’ of divorce. There is very specific drafting that goes into a Will made in contemplation of divorce and the gold standard here is updating your Will with clear intentions. 

Remember that while this holds true for Western Australia, different laws apply to different states and territories, so be sure to check your local laws for discrepancies. 

Secure your Will with experienced estate planning lawyers

Life events like marriage, separation or divorce impact your Will’s validity. It’s important to know what your situation is and how to navigate the legal system when it comes to protecting your estate and your final wishes. 

To secure your assets following a big life event, it’s important to get the right legal assistance. Here at Solomon Hollett Lawyers, our team can support you in finding the right solution for you and your family. We believe effective estate planning is one of the most valuable gifts you can give to those close to you. 

For a qualified Will lawyer and expert advice on estate planning, we offer a free 15-minute phone consultation. Call or email one of our legal experts today on 08 6244 0985.