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Getting Hitched or Splitting Up? It’s time to consider your Will & Estate Planning

When planning your wedding, the last thing you want to think of is making a Will. Why would you? Planning a wedding is exciting, and hopefully a stepping-stone for a long and happy marriage.  Any thoughts of you or your spouse dying are likely to be shut out of your mind.

Similarly, when you’re going through a separation or a divorce, your Will is probably not high on your agenda.

However, when you experience either of these life-changing events, you need to be thinking about your Will, your Enduring Power of Attorney and Enduring Power of Guardianship (EPG).

If you have experienced or are currently experiencing any of these events, we suggest you read the relevant section below.

Marriage

According to Section 14 the Wills Act 1970 (WA), the Will you have in place is automatically revoked upon the event of your marriage, unless it is made in contemplation of marriage[1].

The meaning of the phrase “in contemplation of marriage” was considered in Hoobin v Hoobin [2004] NSWSC 705. White J concluded that “contemplation of marriage” was said to mean that the Will is made in the context of “intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at [53].

Therefore, to avoid your Will being revoked upon the event of your marriage, your new Will needs to be carefully drafted in way that contemplates your marriage and in effect, safeguards your wishes. Alternatively, after you get married, you should arrange to have your Will updated to reflect your new circumstances as soon as possible.

Are you part of a blended family? If yes, then updating your Will following your most recent marriage is even more crucial.  Your new spouse is now in the category of persons able to bring a claim under the Family Provision Act 1972 (WA) if your old Will does not make adequate provision for them. It is important that you get legal advice to ensure you are fully informed of your obligations to your new spouse and any children from your previous relationship. Failing to get appropriate legal advice could increase the difficulty for your loved ones and increase the risk of costly legal actions.

Separation

Many couples, for one reason or another, merely separate and distribute their martial assets, either through the Family Court or amicably between each other.  They don’t go as far as legally terminating their marriage through a formal divorce.

After their experience of separating their marital assets through the Family Court, couples are often exhausted and undertaking any further legal processes in the Family Court is the last thing they feel like facing.  Particularly if they have no intention of remarrying, they may consider that the legal requirement of actually getting divorced is unnecessary.

However, when it comes to your estate, mere separation is not enough to revoke your Will. If you have not sought legal advice and updated your Will, your spouse may still inherit under that previous Will (presuming that when you were happily married, you made your spouse a beneficiary).

You should also be aware that in Western Australia, separation does not revoke an Enduring Power of Attorney (EPA) or Enduring Power of Guardianship (EPG). If you named your spouse as your attorney under an EPA or as guardian under an EPG, you need to review and update those documents to reflect your current wishes, as you probably don’t want your ex-spouse to be able to act as your attorney or guardian.  

Divorce

Divorce is another life-changing event that will impact your Will.  Divorce means you are no longer legally married to your former spouse.  It also means that generally your former spouse cannot make a claim against your estate.  You may sigh in relief.  However, you should be aware that if at the time of your death there are ongoing maintenance payments being made, your ex-spouse may be able to challenge your Will.

Importantly, divorce also means that any Will you may have had in place, prior to the Divorce Order being issued by the Family court, is no longer valid.  Pursuant to Section 14A the Wills Act 1970 (WA), your Will is revoked on the event of your divorce if your marriage ended on or after 9 February 2008.  Hence, you risk dying without any Will (ie intestate) if you have not updated your Will since your divorce.

Again, to avoid having your Will revoked upon the event of divorce and to safeguard you wishes, it should be carefully drafted in a way that contemplates your divorce.  Alternatively, you can simply make a new Will as soon as your divorce comes through. It may be the last thing you feel like doing, but it is important if you want specific beneficiaries to inherit your estate.

If you named your spouse as your attorney under an EPA or as guardian under an EPG, you need to update those documents to reflect your current wishes, as in Western Australia an EPA or EPG is not automatically revoked by divorce.

So, ordinarily, how often should you review your Will? Every 4-5 years. However, if your circumstances change (ie. You’ve married, separated or divorced), you need to review and probably update your Will immediately.

Shirley Tascone and Emily Nixon from Bespoke Wills and Estates are Lawyers experienced in drafting Wills tailored to the effects of marriage, separation and divorce.  If you need to update your Will as a result of either life changing event, please contact us on (08) 9445-2686.

 

Note: The information contained in this article is of a general nature only and is not specific to your individual circumstances.  The contents of this article are accurate as at the date of posting. However, the relevant legislation and caselaw is always subject to change, therefore affecting the accuracy of the article. You should seek legal advice before acting on any of the information contained in this post.

[1] This is relevant for persons dying on or after 9 February 2008.

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Never too young to make a Will

You might think you are too young to make a Will, or perhaps you just have not had time. Well, if you are over 18, you are not too young to make a Will, and everyone should make it a priority.

If you die without a Will, it is not the case (as many believe) that your estate will “go to the government’’. Rather, your estate will be dealt with according to a legal formula outlined in the Administration Act 1903 (WA).

Determining who is to benefit from your estate, and who is entitled to make the application for ‘Letters of Administration’ can be complicated and time consuming. Further, the statutory formula can often be very different from the way most people would leave their estate, if they had made a Will.

This is particularly the case if you leave young children behind. Your children are likely to inherit part of your estate, along with your spouse, if you have them.  However, if your children are under 18, the complications become very significant. There will be a need for someone to act as a surety, who will guarantee that they will make good any financial loss that a minor beneficiary might suffer, as a result of the applicant’s actions.

In our experience, finding a person willing to act as a surety can be very difficult. Further, your spouse’s access to funds might be severely curtailed as a result of a large part of your estate being held in trust (possibly for years) for your children.

If you are single without any children, your estate is likely to go to your parents and/or siblings. You might be happy with that, but you might prefer a friend or a charity to receive your hard-earned assets, rather than your brothers or sisters (who perhaps in your view don’t really need it!).

Blended families, children with disabilities or personal difficulties, and estrangements within families are all things that require particular consideration.

Shirley and Emily are familiar with the many varieties of issues which can arise in this area, and are happy to talk with you about them.

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When should you update your Will?

Do you already have a Will? If so, when should you update it?

You may need to update your Will if any of the following changes have occurred to your circumstances:

  • You have married or divorced since you made your last Will: If so, you now effectively have no Will because marriage or divorce automatically revokes a Will.
  • You have started living with someone: If so, you should be aware that people who qualify as a defacto partner may be entitled to bring a claim against your estate if you do not provide for them.
  • You have had a child, or more children (via birth or adoption): Does your current Will consider all of your children? If you are unsure, you should engage a Lawyer for advice.

Other situations that may require an update of your Will are:

  • If your executor has died, become ill or incapacitated: If your Will does not provide for an alternate Executor, you should update your Will to avoid complications with your Will after your death.
  • You own a business, or have a family trust, or you have a self-managed superannuation fund: It is important to ensure your business, family trust and/or self-managed superannuation fund has the appropriate provisions in place to ensure the continuity of the entities on your death.
  • Overseas Will: If you have overseas assets or a Will from another country, you should seek legal advice about how your Australian and overseas assets can be dealt with without causing complications after your death.

If any of the above changes have occurred, and you have not updated your Will accordingly, please contact us and we will be happy to assist you.