Divorce or annulment of your marriage can have serious implications for your estate planning. As a result, it is important to update your estate planning documents if you experience either of these changes.
At de Groots, we understand that during the chaos and many demands of a divorce or annulment, updating your will may seem like a minor concern. However, it is critically important to review your estate planning during this time.
First, we will consider what Divorce is, what Annulment is and what the key differences are before discussing how these two situations will affect your general estate planning.
Divorce
Divorce refers to the legal termination of a valid marriage which is governed under Part VI of the Family Law Act 1975. In other words, divorce is the dissolution of marriage.
Under the Succession Act 2006 (NSW) divorce is “a divorce order in relation to the marriage” or “a divorce order in respect of the marriage” or “the dissolution of marriage” (s 13(6)).
Annulment
Annulment, by contrast, is when the marriage is treated as if it was never put into effect.
Under the Succession Act 2006 (NSW) annulment refers to “the annulment of the testator’s marriage by the Federal Circuit and Family Court of Australia”.
Succession Act 2006 (NSW)
The Succession Act 2006 (NSW) clearly identifies the effect of divorce or annulment on a will in section 13.
The section states:
(1) The divorce of a testator or annulment of his or her marriage revokes–
(a) a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment, and
(b) an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will, and
(c) a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse.
However, these provisions do not apply if a contrary appears in the will.
(3) The divorce of a testator or the annulment of his or her marriage does not revoke–
(a) the appointment of the testator’s former spouse as trustee of property left by the will on trust for beneficiaries that include the former spouse’s children, or
(b) the grant of a power of appointment exercisable by the testator’s former spouse exclusively in favour of the children of whom both the testator and the former spouse are the parents.
(4) If a disposition, appointment or grant is revoked by this section, the will takes effect in respect of the revocation as if the testator’s former spouse had died before the testator.
(5) Nothing in this section affects–
(a) any right of the former spouse of a testator to make any application under Chapter 3 of this Act, or
(b) any direction, charge, trust or provision in the will of a testator for the payment of any amount in respect of a debt or liability (including any liability under a promise) of the testator to the former spouse of the testator or to the executor or the administrator of the estate of the former spouse.
Challenges
Although these provisions may seem challenging, the legislation clearly ensures that your will operates as if your former spouse predeceased you.
For example, if Jacinta divorces Matt, then her gifts under her will are considered as if he has predeceased her.
Failing to update your estate planning documents following either of these life changes may lead to unwanted consequences such as not having appointed an executor you wish to deal with your estate.
How can de Groots assist?
de Groots wills and estate lawyers, which was established in 1986, specialises in wills and estate planning along with estate administration and estate litigation.
Our wills and estate team are committed to providing personal, confidential and professional advice tailored to your situation. The estate planning team assists clients in relation to estate planning ranging from simple to complex matters. We understand that every estate planning matter is unique, and our specialised team assists our clients who deal with a range of estate planning needs. This includes but is not limited to, straightforward estate planning needs such as simple wills to more complex ones, involving blended families, divorce and business protection,
If you are currently going through a divorce or annulment, or have experienced one in the past, it is important to review your estate planning arrangements to ensure they reflect your current intentions. We encourage you to contact our office to discuss how we can assist you in updating your will and other estate planning documents, and to provide guidance during what can be a challenging time.
Brisbane – (07) 3221 9744
Sydney – (02) 9101 7000
Melbourne – (03) 9975 7321
Read More on:
The Importance of Regularly Reviewing Your Will
We are Never Getting Back Together – 5 Estate Planning Tips When Separating
When divorce isn’t the end
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