15 October 2021
Estates – Impact of divorce on appointment as executor
Our client is coming in for a meeting as the appointed executor of the estate of their former spouse.
Does their divorce invalidate their role as executor? If so, will there need to be an application for letters of administration?
Thank you for the question.
The By Lawyers reference manual 101 Succession Answers (VIC) provides the following under Divorce or annulment of marriage:
If the testator, having made a will while married, then divorces or has the marriage annulled, any appointment of the former spouse as an executor, trustee, or a power of appointment exercisable by or in favour of the spouse, in the will is revoked. However, the appointment of the spouse as a trustee of property left by the will upon trust for beneficiaries that include the children of the spouse, or a power of appointment exercisable only in favour of those who are children of both the testator and the spouse, is not revoked: s 14(1)(b)–(c) of the Wills Act 1997…
The divorce will revoke the appointment of executor unless it appears the testator intended otherwise: s 14(2).
If the appointment of executor is revoked and there are no substitute executors then an application for administration with the will annexed needs to be made.
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