I have been divorced for a couple of years and need to now get the rest of my affairs in order. I currently have a Will with my ex-husband and he is the beneficiary. As we are now divorced, do I have to change the Will, or does the divorce automatically exclude him?
Your Will is automatically cancelled in a range of circumstances. Making a new Will automatically revokes your previous one, provided that the new one is valid. This is when it would be prudent to seek an expert lawyer, that is familiar with Wills and Estates.
Written revocation that is correctly executed and witnessed also cancels a Will, whether or not a new one has been made.
If you get re-married a Will is also automatically revoked. However, a will remains valid if it was made in anticipation of marriage, whether that particular marriage or marriage in general.
A divorce does not automatically cancel or revoke a Will. When there has been a formal dissolution of the marriage, any gift benefitting a former partner in a Will is revoked, however if you have included a statement to the contrary, the appointment of your former spouse as your executor, or trustee is also revoked. As a divorcee you should not rely on a partly-revoked Will, but seek legal advice and make another Will to reflect the changed circumstances.
It is important to note that once a Will has been signed there can be no alteration by simply crossing out or adding new paragraphs, this will have no effect and will be deemed invalid, the court will assume the alteration was made after the signing of the will and the alteration will not be effective!
In cases of just wanting to update a Will, you could utilize a codicil, though it is often simpler to make a new Will altogether.
A codicil is an addition to an earlier Will in a separate document. A codicil has to meet the same formal requirements as a will.
It is very important that a codicil does not contain a clause cancelling or revoking previous wills or testamentary dispositions, otherwise it may cancel the will it was meant to update.
If you are making a new Will, or want to change your current Will, seek expert legal advice. Call Barwick Boitano Lawyers, where one of their experts can advise you on your Will.
Call today on (02) 9630 0444 or email onfjb@bblawyers.com for an appointment.
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