One question we frequently hear from our clients, is “What happens if…?”. After working with our clients to prepare their estate planning documents, we discuss the importance of regular reviews of their estate plan. There are certain life events that not only warrant a review of your estate plan but also may have an automatic effect.
We have prepared the following table that demonstrates what happens in Queensland, New South Wales and Victoria on the occurrence of certain events.
| Document | Event | Effect |
| Will | Marriage | Automatic revocation* *Unless made in contemplation of marriage |
| Divorce | Your former spouse is treated as having pre-deceased you, save for certain appointments in respect of children in common *This only occurs on divorce not separation | |
| Death of a beneficiary | Depends if there is a substitute beneficiary | |
| Death of an executor | Appointment fails and substitute executors take their place, if any | |
| Sale of property gifted | Intended beneficiary receives nothing If the will maker’s attorney has effected the sale of property, the intended recipient of the property may have recourse. NSW – beneficiary may apply to Supreme Court of New South Wales for the proceeds of the sale of property and Court may make whatever orders it sees fit to ensure no beneficiary receives an unfair or disproportionate advantage or disadvantage. VIC – beneficiary is entitled to the proceeds of the sale of the property, if they can be traced, if this results in unintended consequences, the Court may rectify this. QLD – beneficiary may apply to the Supreme Court of Queensland for compensation. | |
| Enduring Power of Attorney | Marriage | NSW & VIC – Nil QLD – revoked to the extent it gives power to someone other than your spouse |
| Divorce | NSW & VIC – Nil. Appointments of former spouses must be revoked and served on the former attorney QLD – revoked to the extent it gives power to the divorced spouse | |
| Your death | Ceases to operate | |
| Your attorney’s death/incapacity/bankruptcy | Appointment fails and substitute attorneys take their place, if any | |
| Resignation of attorney | If you still have capacity, you can make a new appointment, if you have lost capacity, your attorney must seek the approval of NCAT, VCAT and QCAT as appropriate | |
| Appointment of Enduring Guardian (NSW only) | Marriage | Automatic revocation, unless the appointment was of your now spouse |
| Divorce | Nil – appointments of former spouses must be revoked and served on the former guardian | |
| Your death | Ceases to operate | |
| Your guardian’s death/incapacity | Appointment fails and substitute guardians take their place, if any | |
| Resignation of guardian | If you still have capacity, you can make a new appointment. If you have lost capacity, your guardian must seek the approval of NCAT, VCAT and QCAT as appropriate | |
| Appointment of medical treatment decision maker (VIC only) | Marriage | Nil |
| Divorce | Nil | |
| Your death | Ceases to operate | |
| Your decision maker’s death/incapacity | If you have appointed more than one decision maker, the others can act. If you only have one decision maker and you still have capacity, you can make a new appointment. If you have lost capacity, an application to VCAT can be made for the appointment of a guardian | |
| Resignation of decision maker | If you still have capacity, you can make a new appointment. If you have lost capacity, an application to VCAT can be made for the appointment of a guardian |
There are many other life events which can impact your estate plan and it is important to ensure that arrangements you have in place continue to achieve your objectives.
If you are not sure what effect a life event will have on your estate planning, call the team at de Groots on (07) 3221 9744, (02) 9101 7000 or (03) 9975 7321 and one of our lawyers would be pleased to assist you.
By: Kate Donnan, Hannah Willis and Andrew Minahan
