It is just as important to regularly review and update your will as it is to make one in the first place. Births, deaths, marriages, separations, and divorces as well as acquisitions and disposals of property are all good reasons to take a fresh look at your Will and see if it still accurately reflects your estate and your intentions.
Marriage – make a new will
Did you know that your Will automatically becomes invalid when you marry?
While there are some exceptions to dispositions and appointments if you are married at the time of your death, if you die without a valid Will you are said to die ‘Intestate’. It is a common misconception that if you die without a valid Will, your estate automatically passes to the Government or the State. This is not the case. If you die without a valid Will your assets will be distributed according to the rules of intestacy, with certain family members receiving a defined percentage of your assets despite what you may have wished. This can become a problem if you have children from a previous marriage or other people you wish to provide for.
If you have a Will and you are planning to get married, you will need to make a new Will that expressly states that it is ‘made in contemplation of marriage’ (whether a particular marriage or a marriage in general), even if you want the new will to be exactly the same as the old one.
Separation – make or update your will
Separation from a marriage or a de facto partner does not have any effect on your will.
If you pass away and you have not updated your Will, your estranged spouse may inherit any property that you left to them. Similarly, if your estranged spouse is named as your Executor, they will be entitled to take on that role and be responsible for carrying out the instructions in your will. This can become a problem if you have a new partner, children from a previous or new relationship or other people you wish to provide for.
In this situation, it is equally important that you make a new Will to ensure that your current Will accurately reflects your changed circumstances and intentions.
Divorce – make or update your will
In New South Wales, a divorce does not revoke your entire Will.
Divorce only revokes any gift to your former spouse and/or the appointment of your former spouse as your Executor, Trustee or Guardian.
Divorce does not, however, revoke an appointment of your former spouse as trustee of property left on trust for your former spouse’s children or the grant of a power of appointment exercisable by your former spouse exclusively in favour of the children of you and your former spouse. Therefore, it important that you make a new Will to ensure that your current Will accurately reflects your changed circumstances, intentions and appointments.
De facto relationships – make or update your will
Entering into a de facto relationship does not invalidate your Will as a marriage does. In Family Law, the longer your de facto relationship lasts, the more rights you each acquire to a share in each other’s property.
Problems can arise if you have more than one spouse, for example, you are still legally married, and you have a new partner or if you have children from a previous relationship, a new relationship or other people you wish to provide for.
Again, in this situation, it is vital that you make a new Will to ensure that your current Will accurately reflects your new circumstances and intentions.
But wait, there’s more…
Often forgotten, but equally important, are your Appointment of Enduring Guardian and Power of Attorney documents.
Appointment of Enduring Guardian
Your Appointment of Enduring Guardian is revoked upon marriage even if your current spouse is the person you have appointed as your guardian. Upon marriage, it is necessary to have a new Appointment of Enduring Guardian document signed.
Your Appointment of Enduring Guardian is not revoked by separation or divorce. This means that, your estranged spouse, if so appointed, will be able to make decisions in relation to your lifestyle, health and medical needs when you are not capable of doing this for yourself. This may not be ideal, particularly if you have a new partner.
To revoke your Appointment of Enduring Guardian you must sign a revocation which must then be served on your former spouse.
Power of Attorney
Your Power of Attorney is not revoked by either marriage, separation or divorce.
If you do not update your Power of Attorney document, your estranged spouse, if so appointed, will able to manage your assets and financial affairs if you are unable to do so due to illness, accident or absence.
To revoke your Power of Attorney, you can simply tell your former spouse, however, it is preferable to sign a written revocation and have that served on your former spouse.
At Killen and Associates, we recommend that you review your Will, Appointment of Enduring Guardian and Power of Attorney documents every 3-5 years or, on the occurrence of any major life event.
If you have any questions or if you would like to make an appointment and take advantage of our free 30-minute estate planning conference to review the current status of your estate and provide you with advice, give us a call on 6332 6655, we’d love to help.
Jacqui Meades has extensive experience in Family Law and Domestic Violence and strives to resolve matters outside the court system providing timely and positive outcomes with a minimum of stress.