Whether you are looking to get married or enter into a committed de facto relationship, or whether you are separating or divorced, it is very important that you understand the effect your change of circumstances can have on your Will.
Understandably the last thing anyone wants to think about is getting a Will, either when things are great or not so great. In fact, according to the NSW Trustee and Guardian 45% of Australian’s do not have a valid Will. That means that if you die without a Will, then your assets and belongings will be divided according to the laws of intestacy in that State or Territory. But why leave these important matters to chance or to someone else to have to sort out?
If you are divorced, and where there is an existing Will which is valid and has not been revoked, then any gift left to a former spouse will be revoked, as will any appointment the former spouse has the executor or trustee of the Will. If it is clear that the Will was intended to operate irrespective of any divorce, then exceptions apply.
Having said this, your former spouse can still challenge your Will, under the Succession Act Laws, provided that he or she meets the specific criteria required. Specific legal advice is required for challenges to Wills.
“As soon as I got divorced and was left with the 3 children and the house, I knew that a Will was really important for me, I just didn’t want to leave things to chance, I wanted to make sure that everything was properly looked after “
Alison aged 45, PR Consultant
For those people who have separated and not yet divorce or separated from de facto relationships, including same sex relationships the importance of having a Will in those circumstances cannot be over-stated.
If you are in the middle of property/financial proceedings at the Federal Circuit Court or the Family Court of Australia, and one party to the proceedings dies, then the proceedings will continue by the legal representative of the deceased person provided that the Court is of the view that the property matter has merit and ought to continue.
Even whilst in the midst of property proceedings it’s important to have a valid Will, because you want to be the one to have considered whom you would want to continue representing your estate.
In the case of Meddow & Estate of the late Ms Meddow , it was said that:
“In order to determine whether to make an order with respect to the property of the parties of the marriage pursuant to s 79(8), I am required to be satisfied of two conditions …namely, that I would have made an order with respect to property if the wife had not died and that it is still appropriate to make an order with respect to property.”
Justice Le Poer Trench ( Family Court of Australia, Sydney)
If you marry after you have made a Will, then generally your marriage will revoke the Will, unless it is made in contemplation or anticipation of your marriage. There are circumstances when your marriage will not affect the gift to a person who is your current spouse at the time of death.
Your Will is a legal document that expresses your wishes and intentions at the time that you made it and relates to the property you owned at that time. Where circumstances have changed for you, such as marriage or divorce or where you have been in a committed de facto including same sex relationship for a period of time, then regular updated to Wills are recommended. In addition, if children or grandchildren are born or you buy or sell property, then these are some of the circumstances where changes to a Will may be required.
The NSW Trustee and Guardian is a source of information and advice that may be of assistance. Engaging the services of a qualified and experienced lawyer who has knowledge of the area of Wills and Estates can also be of assistance to you.
Disclaimer: the information provided in this article does not constitute legal advice, it is intended as information only. For legal advice regarding your individual matter, please contact a lawyer.
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