Family Law Blog

The Importance of Wills in Family Law Matters

Posted by Lisa Barca, Madison Kelly on 5 Mar 2019

Whilst Coleman Greig has no doubt that our readers will have heard this sentiment time and time again (and not just from us), it remains our duty to emphasise just how critical it is to have a legal Will in place.  In line with the crucial nature of having a Will, it is equally important to ensure that your current Will is indeed appropriate for your individual circumstances - particularly if you are navigating the processes associated with the breakdown of a relationship.

Regardless of the state of the relationship between the involved parties, navigating one's way through a family law matter is more often than not an incredibly stressful time, meaning that parties to a relationship breakdown may not be thinking about the legal implications of their current circumstances.  

Luckily, this is where Coleman Greig's team of experienced lawyers can step in to help.

By way of a brief background, there are two avenues through which property may be distributed following a person's death:

  1. If there is a Will: The estate will be distributed pursuant to the provisions of the Will (assuming that it was validly executed);
  2. If there is no Will: The estate will be distributed pursuant to intestacy laws.  Intestacy applies when a person has died without leaving a Will, or they otherwise fail to dispose of all of their property.  Chapter 4 of the Succession Act 2006 (NSW) outlines the order of priority with regard to this distribution.  

Separation 

If you have separated and are in the middle of a family law dispute (either in or out of the Family Court), your spouse may still have a beneficial interest in your estate (either by way of the Will, or by intestacy), so it is exceedingly important that you obtain professional legal advice in order to address this possibility.

Divorce

If you have been party to a divorce, it is important to note the following:

  1. Where there is a Will: The part of your Will that provides for your ex-spouse to be a beneficiary and/or executor and/or trustee will be revoked (unless there is a clear indication to the contrary within the Will);
  2. Where there is no Will: Intestacy will apply.  

Again, it is important to obtain professional legal advice pertaining to your specific circumstances, as no one legal matter is the same.

Family provision claims (i.e. taking action to contest someone's Will) can be made to challenge the distribution of property under a Will.  A family provision claim is an application made to the Supreme Court of NSW seeking a share of a deceased person's estate.  These applications can be costly, and involve extensive litigation - hence the importance of ensuring that your Will reflects your current circumstances and intentions.  

Within the context of Australia's legal landscape, Estate Planning law is particularly delicate.  Similarly, this area has various crossovers with the family law space, which is why Coleman Greig's Wills & Estate Planning team takes special care to advise our clients of the far-reaching implications of any actions that they are considering taking.

If you have a query relating to any of the information in this article, or you require advice with regard to family law matters and the implications that the breakdown of a relationship is likely to have on your estate, please get in touch with our Family Law team and/or Wills and Estate Planning team.