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Insights

For most people, the end of a relationship is a very emotional and stressful time. Most people will seek family law advice to finalise the division of property and assets between them. However, many will fail to seek legal advice to update their estate planning documents.

Divorce

In the state of New South Wales, a Will is not revoked by divorce. However, under section 13 of the Succession Act (NSW) 2006, the divorce of a testator revokes:

  • a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment, and
  • an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will, and
  • a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse.

However, the above will not apply if a contrary intention appears in the Will.

Separation

Separation between de facto partners does not revoke a Will. The Succession Act (NSW) 2006 does not set out any provisions that would revoke parts of a Will in relation to a former de facto spouse in the same way that it deals with divorce.

Therefore, if you have a Will that leaves the whole of your estate to your former de facto spouse and you fail to update your Will, the Will remains valid on your death.

Furthermore, if you separate from a former spouse but fail to formally end your marriage through divorce, any Will you made during your marriage will remain valid. Again, this could mean that if you die without changing your Will, your former spouse could end up with all or part of your estate. This will apply even if the division of assets has been finalised.

Hypothetical scenario

Jane Jones and Billy Bob were married 20 years ago. After their wedding, they decided to have Wills prepared that left everything to each other and appointed each other as executor.

Jane Jones and Billy Bob separated 10 years ago and finalised their property settlement and division of assets. Jane Jones and Billy Bob decided not to dissolve their marriage through divorce.

Billy Bob passed away. Billy Bob did not update his Will after he separated from Jane Jones.

As there was no divorce in place, Bill Bob’s Will remained valid and therefore, Jane was appointed executor of his estate and was the sole beneficiary of the whole of his estate.

This outcome is not what Billy Bob would have wanted to occur upon his passing.

Lesson to be learned

If you have a relationship breakdown, it is imperative to review and update your Will immediately. Failure to do so, may mean that your former spouse may end up receiving more than you wished for.

 

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