When drafting your will, one crucial question that often arises is whether you need to account for your ex-husband or ex-wife. Additionally, it is important to understand the grounds on which someone might challenge your will.
In Queensland, once your divorce is finalised, your ex-spouse is typically no longer entitled to anything from your estate unless you specifically state otherwise in your will. Under the Succession Act 1981 (QLD), a divorce automatically revokes any provisions made for a former spouse, unless the will explicitly states that it should remain in effect. This means that if you do not update your will post-divorce, your ex-spouse would not inherit anything, as long as there are no other clauses that contradict this.
However, there are a few exceptions to consider. If you have children with your ex-spouse, you may wish to provide for them or make specific arrangements for their benefit. Additionally, if your ex-spouse was named as an executor or trustee in your will, you should revise these roles as they could still be valid unless formally changed. To avoid confusion or unintended consequences, it is prudent to update your will after a divorce to reflect your current wishes and to ensure that your estate is distributed according to your preferences.
Grounds for Challenging a Will in Queensland
In Queensland, several grounds can lead to a successful challenge to a will:
- Lack of Testamentary Capacity: If it can be shown that you did not have the mental capacity to understand the nature and effect of making a will at the time of its creation, the will may be contested. This involves proving that you were unable to comprehend the extent of your estate, the people who might claim a share, or the impact of your decisions.
- Undue Influence: If it is demonstrated that you were coerced or unduly influenced by another party while making your will, it may be contested. This is often relevant in cases where someone might have manipulated or pressured you into making changes that do not reflect your true wishes.
- Improper Execution: Queensland law requires that a will must be properly signed and witnessed. If it can be shown that these formalities were not adhered to, the will might be invalidated.
- Fraud: If it is proven that the will was created or altered through fraudulent means, such as falsified signatures or deceitful actions, the will could be successfully challenged.
- Family Provision Claims: Under the Succession Act 1981, certain individuals, such as children or partners of the deceased who have not been adequately provided for, can make a claim against the estate. However, these claims are unlikely to succeed unless the person bringing the challenge can successfully establish, under s41 of the Act, that they were a dependant of the deceased person. In other words, the Court won’t recognise a claim just because a person believes they are entitled to more, they must be able to establish that they were dependent upon the deceased person. It can’t be merely a wish to receive some of the estate, it must be a genuine entitlement.
Whilst you are not legally obligated to provide for an ex-spouse in your will, updating your will after divorce is essential to ensure it accurately reflects your intentions. Understanding the grounds for contesting a will can also help you make a more robust and defensible testamentary plan.
