Why updating your will is so important having
separated from your partner.
It is critically important to update your Will when significant
life events occur. When you have any changes in your personal
circumstances such as a breakdown in a relationship, it is
important to reflect those changes in your legal documentation to
protect your assets.
After settling their family law matter, clients often say
"I will look at changing my Will (or making a Will) later on,
I just want to get through all this and settle back into things
before I do anything else".
However, it is important to ensure your personal affairs are in
order immediately. Should you pass away unexpectedly, your family
are at risk of not receiving their fair share of your assets or in
some cases receiving nothing at all, leaving your partner the
entirety of your estate.
What happens if you are separated?
The reality is that family law orders and agreements do not
override the arrangements set out in your Will (for the most part).
If you are separated but not divorced, your Will (which presumably
leaves your entire estate to your spouse) still stands and will be
enforced. If you pass away your ex spouse may not use the funds in
a way that supports your family or in a way you would have trusted
they would when you were still together.
Once your divorce is finalised
Once your application for divorce is successful, any provision
you have made for your ex spouse in your Will becomes void. This
includes any gifts you have left them, but also includes their role
as Executor of your Will. If the appointment of your ex spouse as
your Executor becomes void, you may have no one to administer your
estate. This will lead to the Court appointing someone to
administer your estate.
Any gift you have left to your ex spouse will fall into the
residue of your estate and the rules of intestacy will dictate who
will be entitled to those assets. Both of these situations may mean
that your estate is not distributed in the way you would have
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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