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How does a marriage or divorce affect my will?

18th November 2020

How does a marriage or divorce affect my will? 

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Good morning

Simply put, upon marriage, a person’s will is automatically cancelled unless the will states that it is made in the expectation of a marriage. There are a couple of exemptions if the gifts in the will are to the person to whom the person is married at the time of their death. 

Upon divorce a will is not ended in full but any gift to the former spouse at the time of the divorce is cancelled as is the former spouse’s appointment as executor and trustee. It is important that your will is redrafted after a divorce or marriage.

Whilst a divorce affects a will it does not affect the title in land. If a property is held in joint tenancy, that property automatically goes to the survivor upon the death of a party. Joint tenancy whilst most appropriate during marriage, to ensure your partner is able to continue living in the home, after the death of a spouse becomes inappropriate after a divorce. 

A property held in joint tenancy means that each joint tenant owns the property as a whole, with each having an undivided share, with the interest of each ceasing on his or her death for the benefit of the survivors. Whereas a property held as tenants in common each party owns their own distinct portion of the property which can be given away in a will or sold. 

I recommend that consideration of severing a joint tenancy should be contemplated in event of a relationship breakdown and definitely after a divorce. Your new will should also set out any property settlement between the parties, as your former spouse remains able under the Family Provisions of the Succession Act in each state, to be an eligible party to contest a will. In the absence of such clauses it is easier for them to pursue such claims should they qualify as having a special need.

If either you or anyone you know is in this situation, please contact me for further information.

Kind Regards,

 
Jeffrey 
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