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The unfortunate has happened and your marriage has broken down. You are now visiting a solicitor and receiving an overwhelming amount of advice. After receiving advice about Family Law in regards to your Will it is likely 1 of 2 things will happen:

  1. The solicitor will not mention your Will and not provide any advice in this regard; or
  2. The solicitor will advise you that you need an updated Will along with the Family Law proceedings and you think it is another money hungry lawyer. After all how annoying is it to need to update your Will on top of the family law costs!

In either situation it is highly likely you will not consider renewing your Will while any property settlements attempts occur or Family Court proceedings have commenced.

Now the solicitor who has advised of updating your will (or in fact writing your first one!) has done so for the following reasons:

If you have no Will:

When you have no Will, the first person who will receive any gift from your Estate will be your spouse. This means if you are yet to divorce your former spouse will receive a gift from the Estate. At the time of writing this article the minimum amount they will receive depending on your situation is $446,062. A very costly situation for your intended beneficiaries!

If you have a Will:

We are assuming if you have a Will that you will have left a gift of property to your former partner. Now you may have heard that getting divorced revokes a Will. This does have elements of truth. But what happens when you are in between separation and divorce? Your current Will stays in full effect. This means substantial amounts of your Estate, or possibly your whole Estate may end up with your former partner and again a costly situation for your intended beneficiaries!

The Down Side

While updating your will provides a benefit for your intended beneficiaries it is worth noting it does not stop any former spouse from making a claim on your estate. The Family Law Act 1975 (Cth) and Succession Act 2006 (NSW) both have provisions for former spouses to make a claim on an Estate. Possible circumstances are:

  1. Family Law proceedings haven’t commenced and your Former spouse is an eligible person to make a Family Provision Claim when no financial settlement has been made.
  2. Family Law proceedings have already commenced and will continue with your Trustee taking your place. Alternatively; your former spouse may also make a Family Provision Claim.

Despite the potential for your former spouse to make a claim, for important issues such as who should be Executor of the Estate and ensuring your intended beneficiaries receive a benefit from your Estate it is crucial before beginning any property settlement attempts or property proceedings in Family Law. Also remember a claim against the Estate will likely be less than what the current Will provides your former spouse.

For more on the process of writing a new will in contemplation of divorce make sure you contact Gowland Legal to begin your estate planning.