Divorce is often accompanied by a need to reassess an individual’s financial, legal and parenting arrangements. Under the Australian legal framework, the end of a relationship or marriage can have important implications for estate planning meaning that it is important to ensure that your will is up to date to reflect these changes.
The key legislation that governs estate planning and wills in NSW is the Succession Act 2006 (“the Succession Act”). The Succession Act governs how an individual’s estate is managed and distributed after their death including intestacy, family provisions and grants of probate and administration. Under the Succession Act, divorce has specific impacts on an individual’s will.
In particular, section 13 of the Succession Act provides the relevant implications that a divorce or annulment has on a will. This includes highlighting that when a testator’s marriage is terminated by divorce or an annulment, certain provisions in their will are automatically revoked unless there is a contrary intention instructing otherwise.
Under section 13 of the Act, the following are revoked in circumstances of a divorce or annulment of marriage:
- Any inheritance or benefit left to the ex-spouse that was made by a will in existence at the time of the divorce or annulment;
- An appointment of the ex-spouse as an executor, trustee, advisory trustee, or guardian; and
- Any grant of a power of appointment exercisable by, or in favour of the ex-spouse.
However, it is important to note that there are some provisions that are not revoked in a will following a divorce or an annulment.. For instance, Section 13(3) sets out that if your former spouse is appointed as a trustee of property left under a will on trust for beneficiaries that include your former spouse’s children, or a if they are given the power to decide how the property is shared amongst you and your former’s spouses’ children, that these provisions are not revoked.
The purpose of these provisions is to ensure that the will operates as if the former spouse predeceased the testator and to preserve the distribution of the estate following a divorce or annulment.
Whilst divorce may have some implications on your will, only the specific provisions mentioned above that benefit or involve the former spouse may be revoked. Therefore, it is highly recommended that individuals review and update their wills following a divorce to accurately reflect their current intentions.
What about legal separation?
Legal separation does not have the same impact as a divorce on a will. Your will remains unchanged unless you formally revise it during the period between separation and a divorce order coming into effect. Hence, if parties have yet to divorce, an ex-spouse may still continue to be an appointed executor in your will. A separated spouse may also still inherit assets if they are named as a beneficiary in your will, even if you do not wish for this to occur. It is important to review your will upon separation to ensure that your intentions are reflected in your estate planning documents.
Family Provision Claims
Section 57 of the Succession Act allows eligible persons to apply to the Court for a share of a deceased person’s estate if they hold the belief that they have not been properly provided for under the will. An eligible person under this section includes a spouse or former spouse of a deceased person, a person who was living in a de facto relationship with the deceased person, a child of the deceased person, a person who was a dependant of the deceased person, a grandchild of the deceased person or a person who was in a close personal relationship with the deceased person. However, additional considerations may also be taken into account for these claims as a result of legislation not considering these parties as a natural recipient under the will.
A former spouse may succeed in a family provision claim should they be able to demonstrate that there are a number of factors warranting their application. As a result, the Court must be satisfied that the circumstances of a former spouse justifies their claim. The Court will consider the relationship between the former spouses, and the deceased’s obligations or responsibilities towards the applicant. This includes any ongoing contributions by the former spouse to the welfare of the deceased following the end of a marriage. It may also include any circumstances that prevented a property settlement under the Family Law Act 1975 (Cth).
Property Settlements
When considering a former spouse’s family provision claim, the Court may examine the conditions of any property settlement that occurred during the deceased person’s lifetime. Hence, the fact that a property settlement was conducted between the parties previously, does not prevent a former spouse’s ability to make a claim on a share of the deceased person’s estate. A Court approved Deed of Release is an effective document in protecting parties’ estates and ensuring that neither party can make a claim on the other if one spouse or former partner predeceases the other.
The Court will look at whether the former spouse’s needs were met during the deceased’s lifetime. They will also examine if the deceased person held a moral duty to provide for the spouse or former spouse in their will. The length of time since the dissolution of marriage, as well as the subsequent lives of the parties are also relevant factors that will be taken into consideration when assessing a family provision claim made by a spouse or former spouse.
Can a de-facto partner contest a will?
The Family Law Act 1975 recognises de facto relationships and includes provisions for certain rights and entitlements. A de facto relationship is where two people are in a genuine domestic relationship and live together as a couple but are not married. Under section 57(1)(b) of the Succession Act, a de facto partner can make a claim on a will under certain circumstances and are considered as an ‘eligible person’ who may apply to the Court for a family provision claim. However, their inheritance rights are different from those of married spouses and can make contesting a will a much more complicated process for de facto partners.
When making a claim for a family provision order as a de facto partner at the time of the deceased person’s death, the applicant must demonstrate the appropriate factors warranting an application. As per section 59 of the Succession Act, this may include showing a need for their maintenance, education or advancement in life which was not reflected in the deceased person’s will. However, the Court will assess the specific circumstances of each case, including the nature of the de facto relationship, the financial needs of the applicant and the size of the estate when determining whether a claim should succeed.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
Separated? Time to Update Your Will.
Separation doesn’t automatically change your will. Your ex-partner may still inherit or act as executor unless you update it.
At Ramsden Family Law, we provide clear, practical advice to help you protect your wishes after separation.
Contact us to ensure your estate plan reflects your new circumstances.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
