Should I wait until my separation or divorce is finalised before updating my Will?
To which I reply,
‘no no no no no no!’
Why?
Unlike divorce, mere
separation does not affect your Will. If you fail to update your Will upon
separation and you pass away, your ex is likely to inherit any property you left
to them. Similarly, if your Will names
your ex as your executor and you are not yet divorced, they can take up that
role regardless if you now want them to or not.
After divorce, under
Victorian law, any appointment of your ex as executor or gift to them will be
revoked. But this may not occur if a
court considers that this was not your intention.
It is much safer to
clear things up with a new Will upon separation.
You don’t need to
wait until the property settlement is finalised either, particularly if the
Will is not to mention specific property, but rather to leave the entirety of
your estate, say, on trust for your children or to a sibling.
In drafting the new
Will, you will need to think about who you would want as your executor and
trustee. When you were married, it was likely your spouse. But now who? Someone
your age or younger is recommended. A sibling or a best friend is a good
choice. Else, a parent, aunt or uncle
might be a good choice if they're in good health. It should be someone you
trust and be someone who is in a position to manage your children’s inheritance
until they reach adulthood.
You should also
update your Powers of Attorney when you separate if you don’t want your ex
taking care of things if you are incapacitated.
And if you start a
new de facto relationship, you should update your Will again. As time passes in this relationship, you each
develop rights to each other’s property. These rights may conflict with the
wishes set out in your Will. Else, you may wish for your new partner to inherit
your estate, but the intestacy laws may not capture them depending on your
living circumstances.
Separation and
divorce is a complicated time. But one
easy thing you can cross off the list if you are separating is to update your
Wills and Powers of Attorney. Spend an
evening providing instructions here and then we can get it sorted
together, so you can securely move on into the next exciting chapter of your
life.
This blog is a resource for educational purposes only and should not take the place of hiring a lawyer. It is provided for general information only and no information on this blog creates a lawyer-client relationship between us. If you would like us to be your lawyer (for which we'd be delighted!), please email laura@nestlegal.com.au