A Will is a legal document that records how your assets will be distributed after your death and appoints a trusted person to manage your estate.

It is important to review and update your Will when your family circumstances change, particularly if you have recently separated or divorced. In such situations you may need to revise who is included in your Will, or, if there has been a property settlement, what assets may now be available to leave to your beneficiaries.

Receiving legal advice about making a Will or updating it to reflect changes in your life provides certainty and security for your loved ones after you are gone.

Marriage, divorce and your Will

Marriage and divorce can have unintended consequences on an existing Will.

In general terms, and depending on where you reside, marriage revokes a Will or certain provisions of it. However, if you are planning to marry you need not wait until your special day to prepare a Will. A Will may be made in contemplation of marriage so that it remains effective when the marriage takes place.

Generally, divorce treats a reference to a former spouse in a Will as if he or she died before you. The rest of your Will would still be valid, but your ex-spouse would not be appointed as executor and would usually not receive anything from your estate. There are some exceptions to this however, which differ throughout Australia.

Without going into the various rules within each jurisdiction, it is safe to say that whenever your relationship or marital status changes, it is important to review an existing Will or to make a new one to take account of your current circumstances.

The laws about the effect on a Will after a marriage ends relate to divorce or annulment, not separation. If you separate but remain married, your Will takes effect as if you and your spouse were still together – a situation not likely to reflect most peoples’ wishes in such circumstances.

De facto relationships and your estate

If you are considering moving in with your partner, you should understand your rights and responsibilities under de facto relationship laws.

To be recognised as a ’de facto couple’ and have the same legal rights as a married couple, the Family Law Act requires a couple to have been living together for at least two years or have at least one child from their relationship.

A number of factors are considered when determining whether a couple is, or was in, a de facto relationship. These include, but may not be limited to:

• whether the couple are living together and the duration of their cohabitation;
• whether the couple share a sexual/intimate relationship;
• whether the couple have joint bank accounts or own assets together;
• how weekly living costs are shared;
• whether their family and friends acknowledge them as a couple;
• whether they share any children.

Planning ahead

If you and your partner are living in a de facto relationship, and you do not have a Will, you should discuss your circumstances with a lawyer. A lawyer can provide tailored advice and prepare your Wills and other estate planning documents to ensure your testamentary wishes will be upheld when you die.

Entering a financial agreement may be appropriate where couples wish to protect their respective assets. This is useful in circumstances where one partner has significantly greater assets than the other, or where the parties have children from a previous relationship and wish to protect their children’s inheritance.

A financial agreement (referred to also as a ‘pre-nup’) sets out the assets each party has at the beginning of their relationship and how these assets will be divided if they separate.

Preparing a Will                                                                     

Any person who is over the age of 18 and has testamentary capacity (mental capacity to understand and agree to a Will) can prepare a Will. If you are under the age of 18 and are married or contemplating marriage you can also make a Will.

A Will can include a wide variety of assets, as well as dealing with other matters such as who will care for your children, or how their education will be paid for. Although legal advice is not required in order to draft a Will, it is highly recommended. A poorly drafted Will can be deemed invalid by a court or have unintended consequences. For example, if a Will includes an item that is no longer in your possession, that provision of your Will has no effect and the person who was supposed to receive the gift will no longer receive it.

Intestacy

If you die without a Will, your assets will be distributed according to a set legal formula. The formula provides for specific family members to receive a set percentage of your assets and may have a very different outcome from what you wish. The formula does not take into consideration the unique circumstances of your family.

Family Provision claims

A family provision order allows for certain people to receive a distribution from a deceased estate despite not being named in the Will. Some individuals who are eligible to apply for a family provision order include a spouse, former spouse, child or grandchild, or a person living with the deceased as a de facto partner. If you make a family provision claim the court will consider a number of factors to determine whether to make an order in your favour, including your relationship with the deceased and whether the deceased had any obligation or responsibility to provide a distribution for your maintenance, education or advancement in life.

If your family circumstances have changed or you have been involved in a family law settlement, our experienced team of lawyers can advise you about what steps you should take regarding your Will and general estate planning.

If you need advice or assistance, contact [email protected] or call 1300 110 080 to speak to an expert.