Recently Separated but haven’t updated your Will?

Separation is a stressful time, and many people are too busy sorting out a separation agreement and dividing up their assets to turn their mind to the importance of updating their Will.

People often assume Wills are automatically revoked by separation. This is not the case. A Will continues to take effect after you separate until formal separation orders are made by the court or the marriage or civil union is legally dissolved. A Will is also revoked if you remarry or enter into a civil union, or make a new Will. If your marriage or civil union has been legally dissolved your ex-partner cannot be an executor or beneficiary of your Will (but the other elements of your Will survive as if your former spouse had died before you, rather than the Will being revoked entirely), which can result in a very complicated and expensive estate administration process if your Will does not provide for a backup executor or executors.

The position is different for de facto relationships. Post separation an ex de facto partner can still be an executor of your estate and receive benefit from your Will and entering into a new de facto relationship will not automatically revoke a previous Will. So, what does this all mean if you separate but do not update your Will after separation? Many couples, where they put in place Wills during their relationship, will appoint each other as the executors of their respective estates and leave all their assets to each other. Often, they will also jointly own any property together, such as bank accounts, the family home and any shares. Where a couple has put this structure in place and later separates, this means that if one of them passes away and they did not update their Will, in some situations their ex-partner will be in charge of administering the estate and receive everything under the Will, if this is what the Will states is to happen.

Often when an unintended situation like this arises, an agreement will be negotiated between the parties and drawn up in what is called a Deed of Family Arrangement – this is particularly so where there is a new partner involved and/or children from a previous relationship. To put in place a Deed of Family Arrangement all parties need to reach an agreement on how the Estate is to be dealt with, which does not always happen. If, for example, the ex-partner is beneficiary and executor of the Estate and refuses to share the estate assets, the children or new partner may make a claim on the estate under the Family Protection Act 1955 or the Property (Relationships) Act 1976. However, this can be a drawn out and expensive process involving each party having to engage a lawyer. 

The easiest and best way to ensure your ex-partner or ex-spouse does not benefit under your Will is to instruct a lawyer to draft a new Will for you as soon as you separate that reflects your new wishes, and revokes the previous Will. As set out above, this is something you should do as well as completing a separation agreement, the separation agreement being the document that divides out your and your ex-partner’s assets and allows both parties to move forward. It is also important to revoke any Enduring Powers of Attorney for Property or Personal Care and Welfare that appoint an ex-partner as your attorney.

The effect of your separation on your Will is dependent on your particular circumstances and needs to be carefully considered - for advice regarding this and putting in place a new Will contact Kerry Reed at DTI Lawyers on (07) 282 0174.