Many of us know that when you get married or divorced you should make a new Will. However have you ever thought about making a new Will when you and your partner separate?
While you are your partner are going through a separation, and before the divorce is finalised, any Will that you may have previously made is still valid. It is important that you consider if the wishes written in your Will are still current whenever you experience a life changing event. Including separation.
As you are required to be separated for 12 months before you are able to apply for a divorce it is important to consider whether you need to make a new Will. A lot can happen in 12 months and you may have substantial changes as to who you want to inherit from your estate within that time. Also, as you have to wait 12 months before you can apply for a divorce, it is often a lot longer than that before any divorce is finalised.
What happens if you haven’t made a new Will?
If you have been separated or estranged from your partner or spouse for an extended period of time, but have not made a new Will, and your partner or spouse were named them as a beneficiary in your Will they Will still be entitled to benefit from your estate under that Will.
What happens if you have never made a Will?
If you consider that you don’t really have any assets so there isn’t a real need to draw up a Will, your partner or spouse would be a beneficiary of your estate if you died without a Will. Where someone dies without a Will the Administration Act 1903 (WA) applies. This Act sets out who would be entitled to your estate in different circumstances. Where you are married or have a de facto partner, that person is entitled to receive a benefit from your estate. For most people, this would not be what they want.
What can you do?
We therefore recommend that as soon as you are separated that you consider making a new Will. Whilst divorce will revoke a Will it can survive the divorce if it is noted in the Will that it is made in contemplation of your divorce. We recommend as soon as possible making a new Will so your former partner or spouse is not a beneficiary of your estate. If you change your mind later as to who you want to benefit, you can always update your Will. But it is important that your Will always reflects who you want to benefit from your estate at any given time, as you never know what will happen.
Additionally, if you enter into a new relationship before your divorce has been finalised, but have not updated your Will, your former spouse or partner may inherit your estate, rather than your current partner, or alternatively the estate can become contested. This can make an already distressing time for families even worse.
Therefore it is important to seek proper advice regarding how your estate will be handled in your particular circumstances and to make or update your Will on separation. Our Estate Planning team at Lynn and Brown will be more than happy to discuss you situation so please call 9375 3411 to make an appointment.
About the authors:
This article has been co-authored by Alyce Martin, associate and Steven Brown, director at Lynn & Brown Lawyers. Alyce is an experienced lawyer in the areas of commercial law and probate & Wills. Steven is a Director and has over 18 years’ experience in legal practice and practices in commercial law, business law and estate planning.
