In Brief

Mar­riage, divorce and sep­a­ra­tion are all events which require you to change your Will.


Marriage

If you mar­ry it is imper­a­tive that you make a new Will.

If you mar­ry after you have made a Will, the Will is auto­mat­i­cal­ly revoked (or can­celled). The only excep­tion to this rule is if the Will is made in con­tem­pla­tion of mar­riage. If you are plan­ning to mar­ry in the near future and you wish to have a Will made in con­tem­pla­tion of mar­riage, you should obtain legal advice from your solicitor.

Divorce

Unlike mar­riage, divorce does not auto­mat­i­cal­ly inval­i­date a Will. Con­se­quent­ly, when a per­son divorces they should update their Will immediately.

A divorce only revokes or can­cels any gift to your for­mer spouse.

It also can­cels your for­mer spouse’s appoint­ment as Execu­tor, trustee or guardian in the Will but will not can­cel an appoint­ment of a for­mer spouse as trustee of prop­er­ty left on trust for ben­e­fi­cia­ries that include chil­dren of both you and your for­mer spouse.

How­ev­er, there is the abil­i­ty for a for­mer spouse to argue before the court that a deceased per­son did not intend that the Will be revoked by the divorce. A suc­cess­ful appli­ca­tion before the Supreme Court could see your Estate pass to your for­mer spouse, despite the fact that you divorced. Although it is rare for these appli­ca­tions to suc­ceed, it can occur. To avoid the risk of such a claim, upon divorce you need to have an updat­ed Will.

Separation

Unlike mar­riage and divorce, sep­a­ra­tion itself does not affect the valid­i­ty of a Will.

It is there­fore of the utmost impor­tance that upon sep­a­ra­tion you update your Will immediately.

There have been sev­er­al cas­es where a per­son has died dur­ing the peri­od between sep­a­ra­tion and divorce and their for­mer spouse has been enti­tled to the whole of the Estate, either due to a fail­ure to update the Will or by not hav­ing a Will in place at all.

Con­clu­sion — Ensure your Will is kept current

I can­not stress enough the impor­tance of hav­ing a cur­rent Will. Wills should be reviewed at every sig­nif­i­cant event in one’s life but it is imper­a­tive that it is done prompt­ly upon mar­riage, divorce and separation.

For fur­ther infor­ma­tion please contact:

If you would like to repub­lish this arti­cle, it is gen­er­al­ly approved, but pri­or to doing so please con­tact the Mar­ket­ing team at marketing@​swaab.​com.​au. This arti­cle is not legal advice and the views and com­ments are of a gen­er­al nature only. This arti­cle is not to be relied upon in sub­sti­tu­tion for detailed legal advice.

Publications

Stra­ta Law Changes — Effec­tive 27 Octo­ber 2025

What do the lat­est NSW stra­ta law changes mean for own­ers and com­mit­tees? On 27 Octo­ber 2025, the next stage…

How does statu­to­ry inter­pre­ta­tion impact build­ing dis­putes in NSW?

How does statu­to­ry inter­pre­ta­tion impact build­ing dis­putes in NSW? Writ­ten laws like the Home Build­ing Act, build­ing codes, and indus­try…

Prov­ing Major Build­ing Defects Under the Home Build­ing Act

What qual­i­fies as a major defect in res­i­den­tial build­ings under NSW law? Defects can range from minor issues to seri­ous struc­tur­al…

In the News

Con­grat­u­la­tions Michael Byrnes for being recog­nised as a Mon­daq Thought Lead­ing Author for Employ­ment and HR, Aus­tralia in the Autumn 2025 awards.

Mondaq’s Thought Lead­er­ship Awards, released twice a year in Autumn and Spring, cel­e­brate authors whose insights have attract­ed the high­est read­er­ship…

Can you dis­miss an employ­ee for look­ing for anoth­er job?

Michael Byrnes is quot­ed in the arti­cle, ​“Can you dis­miss an employ­ee for look­ing for anoth­er job?”, pub­lished in HRM…

What the West­pac flex­i­ble work rul­ing real­ly means for employers

Michael Byrnes’ arti­cle ​“What the West­pac flex­i­ble work rul­ing real­ly means for employ­ers”, was pub­lished on HRM Online on 2…

Sign up for our Newsletter

*Mandatory information