The simple answer is yes – you should always have a Will which accurately reflects your wishes for property distribution upon your death. Updating your Will is especially important after a family law separation.
There is some misconception that being separated will invalidate your Will. This is not the case. If you are in a de facto relationship, your Will continues to be effective after separation. You will need to execute a new Will if you have named your ex partner in your Will. If you are married, only divorce will invalidate the portion of your Will which names your former spouse, such as the appointment as an Executor, or a gift. It does not invalidate your Will entirely. The only way your Will is revoked automatically is if you are remarried.
During your marriage or de facto relationship, you may have executed a Will appointing your ex partner/spouse as your Executor. Your executor’s role is to administer your estate (your property) and carry out the intentions in your Will as to how your estate is to be distributed. In circumstances of separation, you may not want your ex partner or spouse to be carrying out this role on your behalf. If you are divorced, it may result in no one being appointed as an Executor of your Will.
If you have children, you may wish to consider appointing a person as a testamentary guardian for your minor children, if their surviving parent is not able to do so. The testamentary guardian may also need to apply to the Federal Circuit and Family Court of Australia for formal orders putting this into effect, particularly if there is a dispute about who should be the guardian for the children.
If your Will provides a benefit to your ex partner/spouse and you no longer wish for them to receive this benefit, you will need to update it to remove this provision. If you own property as joint tenants, such as real estate or joint accounts, these assets do not usually form part of your estate and will pass to the surviving joint tenant. To ensure your interest in these assets is distributed according to your wishes and not pass to your ex partner/spouse, you may need to sever the joint tenancy to become tenants in common (in equal shares) or separate your joint bank accounts.
You should also ensure that, in addition to your Will, you update your Binding Death Benefit Nomination in relation to your superannuation entitlements. This is important, as superannuation does not automatically form part of your estate and may be paid separately and prior to your estate administration being finalised. It is also important that you complete a Binding Death Benefit Nomination, rather than simply relying on the beneficiary nomination on your fund website, which is not binding on the superannuation fund.
It is important that you seek estate planning advice, in addition to advice from a family lawyer, following your separation. At Gillard Family Lawyers we have solicitors who can assist you in both your estate planning and family law needs.
Written by
Ashlea Taylor
Family Law Solicitor
It is also important to speak to a family lawyer first. We have experienced solicitors in Newcastle and the Central Coast area that can help you through your family law matter.
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