Marriage
In broad terms a Will is revoked by the marriage of the Willmaker.
There are exceptions including as to dispositions to a person the Willmaker is married to at the time of death and appointments of that person as executor or trustee or guardian. A Will can be made in contemplation of marriage, or expressed to be made in contemplation of marriage, and won’t be revoked upon the contemplated marriage occurring.
Divorce
Divorce revokes any disposition to the Willmaker’s ex-spouse and appointment of that person as executor or trustee, and guardian of children (other than the ex-spouse’s children). The Will otherwise remains unrevoked. It is important to note that separation and division of matrimonial property and resolution of parenting matters (including by court order) do not revoke a Will.
Joe & Cathy
Joe and Cathy had both been married before and have adult children from their previous relationships. They had been together for over a decade and made new Wills after they divorced their ex-spouses. In these Wills they appointed each other as their executors/trustees with one of Joe’s children and one of Cathy’s children as their back up executors and they each left their whole estate to each other in the first instance and then equally between all their children.
Then a few years later they got married but didn’t realise that their marriage revoked their Wills. Joe developed early onset dementia and then Cathy passed away suddenly.
Cathy’s appointment of Joe as her executor/trustee wasn’t revoked by their marriage, but Joe doesn’t have capacity to act as her executor. Cathy’s estate will pass to Joe (that disposition surviving their marriage), but an Administrator will need to be appointed (an Application for Letters of Administration of Cathy’s Estate with the Will annexed).
Joe doesn’t have capacity to make a new Will and their marriage revoked his appointment of his back up executors/trustees and revoked his disposition of his estate to all their children equally. Joe will die intestate unless an application to court for a statutory will is made.
Eric & Sarah
Eric and Sarah had been married for 15 years and had 3 children. They separated 2 years ago and had finalised property and parenting issues, but neither had applied for a divorce. Eric had a new partner who was pregnant with their first child when he tragically died in a car accident. Eric hadn’t updated his Will which appointed Sarah as his executor/trustee and left his whole estate to her.
Penny
Penny made a will appointing her parents as her executors and her mother as the sole beneficiary of her whole estate when she was in her 20s. She married and divorced twice. She died of cancer in her early 70s and never made a new Will.
Her Will was revoked by her first marriage, but it appears that she mistakenly thought it was still valid when she died.
Cathy, Joe, Eric, Sarah & Penny are all fictitious, but unfortunately the above scenarios are not uncommon.
Wills and estate plans should be reviewed regularly to ensure your wishes can and will be effected when you die, especially after marriage and divorce.
Contact Fleur Craig at Armour-Craig Legal to review your Will and estate plan on (03) 5636 4986 or at fleur@armourcraiglegal.com.au.