When it comes to relationships, the last thing you’re probably thinking about is drawing up or updating a Will. However, many people don’t realise that changing personal relationships can significantly impact your Will and how your assets are handled in the future.
Senior Solicitor in Wills and Estate Planning, Natalie Darcy said although “legal documents aren’t romantic” it’s important to speak to a professional and update your Will as it is “one of the most practical ways to demonstrate how much you care.”
Whether it’s a relationship that’s just beginning to blossom or one that’s run out of steam and nearing its end, marriage, divorce and separation all affect your Will differently.
Understanding the impact on your Will throughout the different stages of a relationship is crucial to protecting your assets and making things as simple as possible for your loved ones.
No matter if it’s your first marriage, second or subsequent marriage, you need to review and update your Will. And even if you’ve been happily married for years, Darcy explains that “it is a good idea to review your Will about every 5 years as changes in the law can occur which can impact your Will, such as changes in taxation laws”.
“By reviewing your Will regularly, you can ensure it remains up to date and appropriate to the needs of you and your loved ones.”
In NSW when you get married to someone, it automatically revokes any previous Will that you have made, subject to some limited exceptions (including that any provision you’ve made in your Will for the person you married remains in place). If you were to pass away without making a new Will after the date of your marriage, subject to any exceptions that apply you will pass away “intestate”, which means that you do not have a valid Will at the time of your passing and your assets will then be given to your relatives in accordance with the intestate laws.
This means your partner is the first person entitled to your estate and in most circumstances, they will receive all or most of it.
Whilst this may not be an issue for many first-time marriages, it may cause problems for people who have children from a previous relationship or other people who they are responsible for.
Separating from your husband or wife does not have any impact on your Will in NSW.
This is the case when de facto partners separate and when a married couple separates but are not divorced.
“If you fail to update your Will or delay in updating your Will when you separate, it means that any provision in your Will for your ex-partner remains in place” explains Darcy.
This means that if you were to pass away without updating your Will, your former partner would inherit any property that was gifted to them in your Will, even if you may have wanted your children or other relatives to receive that benefit following your separation.
According to ABS figures, “49,510 divorces were granted in Australia in 2020, an increase of 1.9% from 2019”. With such a significant number of marriage breakdowns, the need for expert advice grows also.
Depending on the state or territory in which you live, a divorce order can effectively ‘strike out’ your former partner from your estate-planning documents.
Darcy explains that “when you divorce in NSW, any gift you left to your ex-partner in your Will is revoked and also any appointment of your ex-partner as executor, trustee or guardian is revoked (subject to some limited exceptions). However, the rest of your Will remains valid.”
But it is important to remember that you must be separated from your partner for 12 months before you can apply for a divorce. And so during this one year waiting period and until your divorce is finalised, all of the terms in your Will remain in place which is why it is incredibly important for you to update your Will as soon as possible to reflect your new wishes.
The process of making a new Will or updating your Will doesn’t need to be complex, time-consuming or costly.
If you’ve had a major relationship change or are just not sure whether your current Will is valid, it is important to seek professional advice from your solicitor or a government agency like NSW Trustee and Guardian. This will give you peace of mind that your Will reflects your circumstances and that your loved will be provided for in accordance with your wishes.
Ready to say “I Will” with the number one Will maker in NSW? Talk to a Wills and Estate Planning Consultant by calling 1300 10 20 30 or visit tag.nsw.gov.au
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