March 6, 2019

Separation – Does it Affect My Will?

The simple answer is a resounding ‘YES’.

So, if things haven’t been going too well on the home front lately – in fact you might even be thinking about separating from your partner, then don’t overlook that most important of all documents – your Will.

Almost half of all marriages fail and it’s the same result for same sex couples.

About half of divorces [according to the ABS] involved children.

If you’ve started the separation process then you will know that it’s a long, difficult and involved process. One important step YOU MUST TAKE is to update your Will.

Why? I hear you ask. Well it’s an essential step to provide protection for your estate and if you have them, your new partner and your children.

Irrespective of whether or not there is any partnership discord, you should review your Will every couple of years and particularly on the happening of certain life events – events such as the birth of children, a change in your financial circumstances, when major financial assets are acquired and so on.

Lawyers are trained to help you through life changing events and this could include separation, divorce and updating your Will. Updating your Will is fundamental to peace of mind and the protection of your family and loved ones.

Separation and Divorce

Separation and divorce each have a different impact on your Will.

Separation takes place once your marriage has broken down irretrievably but you are not necessarily divorced at that time. Even if you are separated from your spouse you are still legally married to your spouse until a divorce is granted.

A divorce is granted by the Family Court of Australia. A divorce becomes final one month and one day after it is granted. Once your divorce becomes final then your marriage will be dissolved and at an end.

Separation doesn’t have an effect on your Will so keep in mind that if you separate from your spouse and die before you get divorced, your estate will be distributed according to your current Will. This might mean that your estate could go to your spouse (subject to any claim made under the Family Provisions). That’s why it is so important that you change your Will.

If you don’t change your Will following separation then it is highly likely that your spouse will be the

Executor of your Will and most likely be the sole beneficiary of your Will.

This might not be what you want to happen.

If you have separated, then you really do need to review your Will and make changes to meet your new circumstances.

Once you are divorced then some clauses of your Will are revoked as matters of law [Succession Act 1981 Qld]

The Act provides that divorce:

  • ✓ Revokes any gift made to your former spouse by the Will;
  • ✓ Revokes any appointment made by the Will for your former spouse ie executor, trustee, advisory trustee or guardian;
  • ✓ Revokes any grant made by the Will of a power of appointment in favour of or exercisable by your former spouse.

If a gift, appointment or grant of power of appointment is revoked by divorce, then your Will is taken to be read as if your former spouse had died before you. This means that the remainder of your estate will be dealt with in accordance with the terms of your Will.

There are however, some limited exceptions, if you and your former spouse have children together. In that case, the divorce will not revoke the appointment of your former wife as trustee of property left by you on trust for your children. Likewise, the divorce will not revoke a grant of a power of appointment exercisable in favour of your mutual children.

Even though these exceptions might apply, we strongly recommend that you update your Will to ensure that your wishes for how your estate is to be dealt with are confirmed in a legal document – YOUR WILL.

To ensure that your estate is protected and sets out your current wishes, the terms of your Will should reflect your current status – your new relationship if you are in one and those whom you would appoint to administer your estate i.e. executors, trustees etc.

But, updating your Will is only doing half the job – update your Enduring Power of Attorney as well because no doubt you have appointed your former spouse as an attorney.

Getting your Will right is not only important, it’s critical to your peace of mind and ensures that your estate goes where you want it to go – not where others might see a need.