Validity of a Will – Does Divorce Revoke a Will?

Date: Sep 06, 2012
Document Type: Article

Section 13 of the Succession Act 2006  provides that, subject to a contrary intention in the Will, divorce revokes, in the existing Will

(a) disposition to the testator’s former spouse

(b) appointment of the former spouse as executor, trustee, advisory trustee or guardian

(c) any grant of a power of appointment exercisable by or in favour of the former spouse.

The Will itself may still be a valid Will but for those parts revoked.

On revocation under Section 13 the Will takes effect as if the former spouse died before the testator.

Under Section 13 the termination of the testator’s marriage does not revoke:

(a) the appointment of the former spouse as trustee of property left by the Will on trust for the former spouse’s children; or

(b) the grant of a power of appointment exercised by the former spouse exclusively for children who are children of both the testator and the former spouse.

Divorce does not revoke the whole Will but only that part of the Will that operates in favour of the former spouse.

What is affected by the divorce is :
(a) any beneficial gift in favour of the former spouse
(b) certain appointments of the former spouse under the will; and
(c) any power of appointment conferred on the former spouse.

But for the parts of the Will revoked, the Will may still be a valid Will.

Section 13 revocations do not affect any entitlement of the former spouse to make a claim for provision or further provision out of the deceased’s estate if the former spouse is otherwise entitled, as an ‘eligible person’ to make such a claim.

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