By Charlotte Black and Laura Mimmo
If you have recently finalised your divorce, you may be questioning whether your divorce will have any impact on your Will. You may also be considering whether you need to make any changes to your Will, particularly if your former spouse was named in your Will, whether as an executor or beneficiary or in any other capacity.
Impact of divorce on a Will
If you have previously made your Will but that Will provides, for example:
- Your former spouse as your executor; or
- Your former spouse as a beneficiary (i.e. is to receive something under your Will);
you may be questioning whether you now need to change that Will to remove your former spouse.
Pursuant to section 14 of the Wills Act 1997, where you have divorced, any disposition that you have made to your former spouse is revoked. This may include the gifting of:
- property such as your house;
- a sum of money;
- your car;
- jewellery;
- personal items; or
- the residue of your estate
Your divorce will also revoke any appointment your spouse is to receive in your Will such as an appointment as your executor or trustee.
However, this may not be the case if there is clear evidence that you did not wish to revoke that bequest or appointment, known as a contrary intention.
What is a contrary intention?
There is no strict rule as to what constitutes a contrary intention. It is rather something that is assessed on a case-by-case basis.
The recent decision of Justice Moore in Re Sampson provides some guidance on what may be considered a contrary intention.
In Re Sampson, the deceased’s former wife brought proceedings seeking confirmation of her appointment as the executor of her former husband’s Will by a Grant of Probate.
The deceased’s former wife, Claire, separated from the deceased, Colin in 2016 with their divorce finalised in 2018.
In 2016, being after their separation but before their divorce, Colin made a Will which appointed his former spouse, Claire, as the executor and trustee of his Will.
In addition to his 2016 Will, prior to his passing but after the finalisation of his divorce, Colin:
- drafted a letter to his son Jack in which he made it clear that he wished Claire to be the trustee of his Will and to distribute the assets of his estate;
- had a dinner with Claire and his son Jack in which he made it clear that he wished Claire to be the executor of his will; and
- had a telephone conversation with his brother Gregory in which he again stated that he was content that he had appointed Claire as his executor.
His Honour Justice Moore found that based on the letter and conversations, it was evident that Colin had intended for Claire to remain the executor of his estate, despite Claire and Colin having finalised their divorce.
Does my divorce revoke all references to my former spouse?
It is of key importance to note that a divorce does not revoke all references to your former spouse in your Will.
For example, if you appointed your former spouse to manage a trust set up for the benefit of a child you shared, section 14(1)(c) of the Wills Act 1997 does make cause to any alteration to that.
Should I still amend my Will?
Given the implications of section 14 of the Wills Act 1997, you may be asking whether in fact it is necessary to amend your Will if references to your former spouse are revoked on finalisation of your divorce.
It is of key importance to note that there are no set principles for what would establish a contrary intention showing that you did not intend the divorce to revoke references to your former spouse. As detailed above, any assessment of contrary intention must be assessed on a case-by-case basis.
For example, your former spouse may, upon your death, seek to argue that something you have said amounts to a contrary intention. This may result in a determination that your Will did not alter as a consequence of your divorce.
Conclusion
It is imperative that you seek legal advice on whether you should change your Will following your divorce. You should not presume that upon your divorce, your former spouse will be automatically removed from your Will.
At Eales & Mackenize, our experienced Estate Planning Lawyers are available to guide you through the process from start to finish. If you have any questions or concerns about your current Will post separation or divorce, please contact Mr Richard Mackenzie or Ms Charlotte Black on (03) 8621 1000 at our Melbourne office or (03) 9331 1144 at our Essendon office or via email at advisors@emlawyers.com.au.
