A Will is the one important legal document many people forget to update when their relationship status changes.
In NSW, you must be separated from your spouse for 12 months before a family court will finalise your divorce.
After being separated from her husband for nine months, Monika* was severely injured in a car accident on her way to work and passed away.
As the divorce was not yet finalised and the separation had no impact on her Will, all of Monika’s assets were left to her former husband as she had not gotten around to updating her Will following her separation.
Whether it’s the start of a relationship or the end, it’s important to understand the vital connection between marriage, divorce or separation and your Will.
Changes to your relationship status can impact your Will. For example if you marry or divorce, some or all of your will may be revoked, depending on the circumstances, so you need to get professional advice and you may need to update your Will.
Natalie Darcy, Senior Solicitor Estate Planning at NSW Trustee & Guardian says that it should be one of first things couples consider.
“When you get married, separated or divorced, if you don’t update an existing Will or have one written, it can affect the people you care about.”
“In NSW, the Succession Act 2006 governs the legal processes associated with inheritance disputes. Section 12 of the Act states that getting married revokes a Will, although this is subject to certain exceptions.”
“This means a person who recently married may be deemed to have died intestate – meaning they died without a valid Will – if they pass away after the wedding without having updated their Will, any prior Will may be invalid.”
Intestacy rules in NSW mean the entirety of a person’s estate would go to the surviving spouse (provided there are no children from previous relationships). This may be okay for some, but others may want to distribute their assets to other family members or charities.
A divorce will generally cancel your former spouse’s appointment as executor, trustee or guardian in your Will, and also any gifts in the Will in favour of your former spouse, but there are certain things relating to your former spouse that might remain in the Will, such as where your former spouse is appointed as trustee for assets left by the Will on trust for beneficiaries that include your former spouse’s children.
“People spend time updating their Facebook relationship status, but don’t give as much thought to the important legal documents that are affected,” says Ms Darcy.
“Legal documents aren’t romantic but updating your Will can be one of the most practical ways to demonstrate how much you care.”
If you’re living in a de facto relationship at the time of your death and you don’t have a valid and up to date Will, the need to prove the relationship can result in additional expense and distress to your partner at a time when they are grieving.
It’s much easier if you have a valid and up to date Will. This can help ensure that your affairs are managed according to your wishes (as opposed to the rules of intestacy applying if you don’t have a valid Will, or an old out of date Will applying because you didn’t keep your will up to date).
The process of making a new Will doesn’t need to be complex, time consuming or costly. If you’ve had a major relationship change or are just not sure whether your current Will is valid, contact NSW Trustee & Guardian.
Visit www.tag.nsw.gov.au to find out more.
*Names and identifying details may have been changed to protect the privacy of individuals.
