A will does not expire. It stays in force until it is changed or revoked.
In NSW, marriage revokes a will, and divorce cancels gifts to a former spouse.
Other changes in your life do not change your will, so you need to review it yourself.
Marriage
Under section 12 of the Succession Act 2006 (NSW), marriage revokes your will.
The exception is a will made in contemplation of marriage, either a particular marriage or marriage in general.
There are further exceptions for gifts to the person you are married to at your death.
If your will is revoked and you do not make a new one, your estate may pass as if you had no will.
Make a new will after you marry, even if you want the same terms.
Divorce
Under section 13, divorce does not revoke the whole will.
It cancels gifts to your former spouse.
It also cancels the appointment of your former spouse as executor, trustee or guardian.
Your will can say otherwise, if you want your former spouse to keep a role.
The rest of the will stays in force.
A divorced person should make a new will rather than rely on these rules.
Separation
Separation does not change your will.
If you are separated but not divorced, your will remains valid unless you revoke it.
A former partner named in the will may still receive the gifts and act as executor.
A divorce can only be finalised after 12 months of separation, so your will needs attention well before then.
Other times to review your will
Changes in your life do not change your will on their own.
Review your will when:
- You marry, separate or divorce.
- You start or end a de facto relationship.
- You have a child or grandchild.
- A beneficiary or executor dies, or can no longer act.
- You buy or sell property, or start or sell a business.
- Your superannuation or life insurance arrangements change.
- You move to another state or country.
- Your executor or guardian is no longer the right choice.
Where people get caught
Assuming an old will still works after marriage
Marriage revokes it unless it was made in contemplation of marriage.
Leaving a former spouse in the will during separation.
Separation alone does not change the will.
Writing changes on the signed will.
Crossing out or adding words after signing has no effect.
Making a codicil that cancels the will.
A codicil must not contain a clause revoking earlier wills, or it may cancel the will it was meant to update.
Waiting until capacity is lost.
Only you can change your will. An attorney or enduring guardian cannot change it for you.
You can change your will at any time while you have capacity
There are two ways.
- A new will. It should state that it revokes all earlier wills.
- A codicil. This is a separate document that adds to or changes your will. It must be signed and witnessed in the same way as a will.
A new will is often simpler and clearer.
You can also revoke a will by destroying it with the intention of revoking it, or by a signed writing that meets the formal rules.
Your power of attorney, enduring guardianship and advance care directive are separate documents
Marriage revokes an appointment of enduring guardian, unless the guardian is your new spouse.
Review these documents at the same time as your will.
Common questions
How often should I review my will?
The law does not set a time. Review it after any major life event, and when your assets or family change.
Does my will stop working if I separate?
No. Separation does not change a will. Divorce cancels gifts to a former spouse. Marriage revokes a will.
Can I just add a note to my will?
No. Changes after signing have no effect. Use a codicil signed and witnessed like a will, or make a new will.
If your life has changed since you signed your will, have it reviewed. Call (02) 8062 6300.
This article is general information only. It is not legal advice for your situation.