Sunday, 2 November 2014
Marriage, Divorce and Wills
MARRIAGE, DIVORCE AND WILLS.
In Australia, where I live and practise law, the legal rules affecting Wills are complex. This is because the rules are a mixture of court-made rules that built up over centuries in England and then Australia (after European settlement), which are called "common law", and rules introduced by legislatures (Parliaments), often in a well-intended effort to improve the common law. Add into the mixture that Australia has multiple States and Territories, all of which have different legislation, and you have a fantastic opportunity for lawyers to make money giving people advice. See, every cloud has a silver lining.
As indicated by the title of this post, the purpose of this blog article is to look at what happens when a person either marries or divorces, after they make a Will in Australia. First issue: to "marry" and "divorce" have been given extended meanings by some of the State and Territory legislation mentioned above, and has been extended to de facto spouses and same-sex spouses, in some jurisdictions but not others. Second issue: not all States and Territories treat the effects of these events in the same way.
The general rule is that marriage cancels a Will made before the marriage, unless the Will says that it is "made in contemplation" of the marriage, that is, the person wants the Will to stand. The logic behind this rule is that a person would normally want to look after their spouse in their Will and leave the spouse a large gift if not everything in their estate. What happens if a person dies without a Will under the "law of intestacy" is that the spouse gets a large proportion of the estate. In effect, by cancelling the Will on marriage, the law forces the deceased person into this default solution to their post-death property distribution.
What happens on divorce varies. In two States of Australia, Western Australia and Tasmania, divorce also cancels a Will. In some other States, the effect of the divorce is that references to the former spouse are taken as being deleted from the Will, but the rest of the Will remains valid. This affects not only the appointment of the ex-spouse as executor, but also any gifts left to the ex-spouse.
It is not feasible in an article of this length to explain all of the intricacies of the legal rules regarding marriage, divorce and Wills. If you live in Australia and have a Will, or are thinking about making one, and are planning to either get married or get divorced, you probably need assistance from a lawyer.
- JAMES IRVING
[This article is not intended to create a lawyer/client relationship with any reader, and does not represent legal advice. It is offered for informational and educational purposes only. You are welcome to visit our website at http://irvinglaw.com.au for more information on this topic and others.]