Should I Change my Will After a Divorce?

It is generally recommended that you would have already made a new Will after separation. This is because if you pass away prior to the granting of the Divorce Order, the risk of your spouse inheriting any of your estate is high.

After the granting of your Divorce Order issued by the Federal Circuit Court, any Will that you made during your marriage is nullified.



If during your marriage you did not make a Will or it was an invalid Will, again, it is only after the Divorce Order is issued that the laws of intestacy can apply and your former spouse should not be able to inherit any of your estate after your death.



If, however, you did not create a new Will during this period, you should certainly change your Will after the Divorce Order. Make a Will that reflects your new change of circumstances and your new intentions.



If you pass away, the Courts may not recognise your new intention if:

  • They believe you had the intention to leave your ex-spouse a gift
  • You re-published the Will after the Divorce Order and did not change the executor or appointment of gift(s)

There is a risk that if you do not change your will after the Divorce Order, your new intentions may not be carried out.

Instead of leaving these possibilities open to the Courts to decipher, it is safer to change your Will or make a new one after the granting of your Divorce Order to ensure, in writing, that your intentions with your estate after your death regarding your former spouse are clear.


For the same reason, if you did not have an existing will or it was invalid, ensure you make one.



Why risk it?

What happens if I can’t attend counselling?



HOWEVER, sometimes it is not possible to attend counselling with your spouse and if you do not attend counselling, you must seek the Court’s permission to apply for a divorce.



You can do this by filing an affidavit with your application to divorce, which is basically a written statement prepared by a witness or party. This is used to present facts of the case to a Court and it must be sworn or affirmed in front of a person such as a lawyer or a Justice of the Peace.



Your affidavit must explain:



  • Why you and your spouse have not attended counselling


  • This can include not being able to locate your spouse, or if your spouse refuses to go. You must detail your attempts to find them or give notice inviting them to counselling.


  • Any ‘special circumstances’ of your case


  • For example a special circumstance could be where there is a history of domestic abuse in the marriage and it would be dangerous for you to attend counselling with your spouse.



Remember: if you’ve been married less than 2 years the proecss for divorce is different and if you need any legal advice in your situation, you can contact Neat Law for our services.