You should regularly review your Will every three to five years to ensure
that it accords with your wishes. You should particularly consider updating
your Will when there is a significant event in your life or the life of
your loved ones, including:
- property acquisition and disposal
The Effect of Marriage and Divorce on your Will
It is important to understand the effect a relationship change has on your
Will. Whether you are married or in a de-facto relationship, divorced or
separated, your Will should reflect your current circumstances.
If your relationship status changes and you do not update your Will (or
have a Will in place) then there is a chance that your assets will not pass
in accordance with your wishes. This could be costly and cause unnecessary
stress for your loved ones.
Many Australians are unaware that their Will becomes invalid when they
marry. If you fail to update your Will after your marriage, the law states
that the Rules of Intestacy will apply to your estate. In NSW, this means
that the entirety of your estate could go to your surviving spouse. This
may not be a problem for many first-time marriages, but if you have
children from a previous relationship or other people you wish to provide
for, your Will needs to be updated.
Generally, divorce treats a reference to your former spouse in your Will as
if he or she died before you. This means that any clauses in your Will that
refer to your former spouse, such as their appointment as your executor or
gifts of assets to them, will be invalid. However, there are some
exceptions to this, which differ throughout Australia.
Unlike divorce, marriage separation does not have an effect on your Will.
The period of separation that occurs prior to divorce is therefore one of
the most important times to ensure that your Will reflects your changed
circumstances. If you fail to update your Will when you separate and you
later pass away, your former spouse may inherit any property that you left
to them in your outdated Will. Similarly, if you do not have a Will in
place and you have separated, then your assets will be distributed as per
the Rules of Intestacy which in NSW means that the entirety of your estate
could go to your former spouse.
Family Provision Applications
In NSW former spouses are eligible to go to Court and seek provision from
your estate after you pass away, regardless of the terms of your Will, even
if you have already finished a family law property settlement and your
former spouse was not dependant on you when you died. Thankfully, there are
strategies you can adopt to minimise the chance of a family provision
application being brought against your estate and these options should be
canvassed with a lawyer.
How Rayners Lawyers can help
An outdated Will (or simply not having a Will) can have unintended
consequences and will often be costly, time consuming and unnecessarily
stressful for your loved ones. For peace of mind, certainty and control,
contact Rayners Lawyers today.