Marriage and divorce and its impact on the validity of your will

When couples separate, it is usually a highly emotional time that can seem overwhelmingly complex.

As a result, and understandably, they tend to focus on the ‘here and now’ issues like living arrangements, money and custody of children.

Behaviour is most often reactive and little attention is given to long-term matters like estate planning.

In Western Australia, a will will be automatically revoked on the occurrence of two life events, being marriage and divorce.

That is, if you have made a will prior to being married and then marry, that will is revoked on the day of your marriage and from that point, you will not have a will until you make a new one.

The same applies to divorce.

If you have made a will while married, then on the date your divorce is declared, your will will automatically be revoked, and from that point on, again, you will not have a will until you make a new one.

While the above seems logical, this system of automatic revocation does not apply to someone entering or ending a de facto relationship or someone who is separated from their spouse but not divorced (regardless of the length of the separation).

In those circumstances, any will made prior to those life events remains valid and binding, so unless you change your will, any will that gave all or part of your estate to an ex-de facto or a separated spouse will remain in effect.

The Wills Act (WA) 1970 provides an exception to the automatic revocation rule.

If a will-maker expressly states in their will that their will is to remain valid even if they marry or divorce, then the will will not be automatically revoked on their marriage or divorce (as the case may be).

Enduring Powers of Attorney and Enduring Powers of Guardianship do not automatically revoke on the occurrence of any life events, meaning that your ex-partner could continue to act under those documents if you have not taken measures to revoke them.

Further, most people will have made nominations for their superannuation to be paid to their partner.

Again, these nominations rarely automatically revoke on the occurrence of life events, so if you do not update your nomination on the happening of a life event, your superannuation might end up in the hands of an ex.

If you, or someone you know is separating from their partner, it is important to remember that in addition to the immediate ‘here and now’ matters that require attention, attention must also be given to longer-term matters such as estate planning.

You should seek advice on the occurrence of any major life events, to ensure that your estate planning is in accordance with your wishes and will remain valid.

Catherine Cousins is a senior lawyer at Greenstone Legal.