Change Will After Divorce Victoria

What Section 14 of the Wills Act 1997 Actually Does

When your divorce order becomes final in Victoria, Section 14 of the Wills Act 1997 automatically revokes two categories of provisions in your will:

1. Gifts or dispositions to your former spouse — any property, money, or assets you left them
2. Appointments of your former spouse as executor, trustee, or guardian

The rest of your will remains completely valid. Your former spouse is treated as though they predeceased you — the gift falls to whoever your will names as the alternate beneficiary, or to the residuary estate.

This sounds reassuring until you think about what it doesn't cover.

What Section 14 Does Not Fix

No substitute executor — If your will names your former spouse as sole executor and doesn't nominate an alternative, there's nobody to administer your estate. The court would need to appoint someone, which costs time and legal fees your beneficiaries didn't budget for.

No residuary clause — If the gift to your former spouse was your residuary estate (the catch-all for anything not specifically bequeathed), revoking that provision can create partial intestacy. Victorian intestacy rules then decide where the leftover assets go, which may not match your intentions.

Contrary intention exception — Section 14(2) allows a former spouse to argue that the will contains a "contrary intention" — language suggesting the gifts should survive divorce. Courts assess this case by case. The Victorian Supreme Court considered what counts as contrary intention in Re Sampson [2024] VSC 351, and the boundaries are far from settled. If there's any ambiguity in your will, it's litigable.

Trustee for children exception — Under Section 14(1)(c), your former spouse's appointment as trustee of property held on trust for your children survives the divorce. This makes practical sense — removing the children's trustee mid-divorce could harm their interests — but it means your ex may still control assets intended for your kids.

Separation Is the Real Danger Zone

Section 14 only activates when the divorce order is finalised. During the mandatory 12 months of separation before you can even file for divorce, and during the court process itself, your existing will stays fully valid and enforceable.

If you die while separated but before your divorce is final:

• Every gift to your estranged spouse in your will is paid out
• Their appointment as executor, trustee, or guardian stands
• If you die without a will, Victorian intestacy rules give your estranged spouse a statutory share of everything

This is the gap that catches people. The separation period can stretch well beyond 12 months if property negotiations stall or court dates are delayed. During that entire window, your old will operates as though you're still happily married.

The fix: draft a new will as soon as you separate, not when you divorce. Explicitly exclude your estranged spouse from all provisions and name new executors, trustees, and guardians.

De Facto Relationships: No Automatic Protection

The automatic revocation under Section 14 applies only to marriages. If you were in a de facto relationship — even a long-term one recognised under the Family Law Act — the breakdown of that relationship has zero effect on your will. Any gifts or appointments benefiting your former de facto partner continue indefinitely until you actively amend or revoke the document.

Your Super Sits Outside Your Will Entirely

Your superannuation balance is held in a trust, not in your estate. Your will has no power over where it goes. If you made a Binding Death Benefit Nomination in favour of your spouse, that nomination survives divorce unchanged. The fund trustee is contractually obligated to pay the death benefit to whoever is nominated, even if your freshly drafted will says otherwise.

Updating your BDBN is a separate administrative step — submit a new nomination form directly to your super fund after your divorce is final.

What to Do Now

1. Draft a new will — don't rely on Section 14's automatic revocations. Name new executors, trustees, guardians, and beneficiaries explicitly.
2. Execute new enduring powers of attorney — if your former spouse was your attorney, revoke the old power with a formal written revocation of the appointment.
3. Update your BDBN — submit a fresh Binding Death Benefit Nomination to your super fund.
4. Review the residuary estate — make sure your new will has a functioning catch-all clause so nothing falls into intestacy.

The Victoria After-Divorce Checklist includes an estate planning worksheet that walks through each of these updates and tracks exactly which documents you've completed and which are still outstanding.

See more Victoria guides →