You have separated or divorced. Now update your Will.
Why updating your will is so important having separated from your partner.
It is critically important to update your Will when significant life events occur. When you have any changes in your personal circumstances such as a breakdown in a relationship, it is important to reflect those changes in your legal documentation to protect your assets.
After settling their family law matter, clients often say “I will look at changing my Will (or making a Will) later on, I just want to get through all this and settle back into things before I do anything else”.
However, it is important to ensure your personal affairs are in order immediately. Should you pass away unexpectedly, your family are at risk of not receiving their fair share of your assets or in some cases receiving nothing at all, leaving your partner the entirety of your estate.
What happens if you are separated?
The reality is that family law orders and agreements do not override the arrangements set out in your Will (for the most part). If you are separated but not divorced, your Will (which presumably leaves your entire estate to your spouse) still stands and will be enforced. If you pass away your ex spouse may not use the funds in a way that supports your family or in a way you would have trusted they would when you were still together.
Once your divorce is finalised
Once your application for divorce is successful, any provision you have made for your ex spouse in your Will becomes void. This includes any gifts you have left them, but also includes their role as Executor of your Will. If the appointment of your ex spouse as your Executor becomes void, you may have no one to administer your estate. This will lead to the Court appointing someone to administer your estate.
Any gift you have left to your ex spouse will fall into the residue of your estate and the rules of intestacy will dictate who will be entitled to those assets. Both of these situations may mean that your estate is not distributed in the way you would have wished.
If you need assistance updating your Will, please do not delay and contact our experienced Wills and Estates lawyer:
Rosemary Carreras, Senior Associate
Phone: +61 2 9895 9277