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How Does Divorce Affect a Will? (Vic)

Separation is the factual ending of a marriage and has no legal effect on a party’s will. A divorce, however, is the legal ending of a marriage and has a very important effect on the wills of the former spouses. This article outlines the effect of divorce on a will in Victoria.

Will altered by divorce

In Victoria, once a Divorce Order is made by the Federal Circuit Court, or a divorce is granted in another country, the will of the testator (the person making the Will) is altered in the following respects:

  • Any disposition to the divorced spouse of the testator made in the will is revoked;
  • The grant of a power of appointment by the will exercisable by or in favour of the spouse, other than a power of appointment exercisable by the spouse only in favour of persons who are the children of both the testator and the spouse is revoked;
  • Any appointment made by the will of the spouse as an executor, trustee, advisory trustee or guardian other than the appointment of the spouse as a trustee of property left by the will upon trust for beneficiaries that include the children of the spouse is revoked.

However, the above does not apply to any disposition, appointment or grant, if it appears that the testator did not want the disposition, appointment or grant to be revoked upon the ending of the marriage. This must be assessed based on the wording in the will.

Superannuation and life insurance

What happens to your superannuation or life insurance after you pass away is not necessarily determined by your will. If you get a divorce and want to change the entitlements under your superannuation or life insurance, you should contact your superannuation/life insurance company to ask for forms to change the nominated beneficiary of your superannuation fund/life insurance policy. If you do not do this, your former spouse may receive your superannuation/life insurance after you pass away.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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