45 Cameron Street, Launceston Tasmania

Phone: (03) 6332 9353

/uploads/blogging/featured/separation.jpeg

When should you make a new Will?

If you have made a Will, there are certain life events that have an impact on your Will. In such circumstances you should review your Will and in some cases it is important to make a new Will.

The importance of making a new Will if you separate from your spouse is highlighted by a recently reported case in the media. The facts of the case are:

  • A 30-year-old man (we will call him Bob) was married to ‘Betty’, but they were separated;
  • Bob and Betty both had new partners;
  • Bob and Betty owned property together but had finalised their property settlement;
  • The divorce application was provided to Bob by Betty, however Bob died before signing the application; and
  • Bob did not have a Will and, as a result, the rules of intestacy applied to Bob’s estate.

Despite the fact that they had separated, finalised a property settlement and both re-partnered, as Betty was still classified as Bob’s spouse it meant that 100% of Bob’s estate went to Betty.  Sadly for Bob’s new partner, they had lived with each other just shy of the two years required to be considered a de facto couple. 

The outcome of this case would have been different if Bob had:

  • Made a Will following his separation from Betty. Making a new Will would have meant that his estate would have been left to people of his own choosing; or
  • Signed the divorce application.

Whilst divorce has the effect of revoking a Will in favour of their former spouse, or preventing the former spouse from having an interest in the estate under the intestacy rules, separation does not have this effect.  In addition, the requirement for spouses to be separated for 12 months before they can apply for a divorce means that people who do not make or update their Will prior to divorce are at risk of their former spouse receiving part or all of their estate if they die.  This is despite the fact that the former spouse may have already received significant property in a property settlement.

The case outlined above is a good reminder to those who are separated but not divorced to make a new Will and also review their estate plan.

Even though making a new Will may be low on the priority list at the time of a separation, you should be aware of the importance of updating your Will.  

If you would like our assistance in making a Tasmanian Will or would like to discuss the effect of separation on your existing Will, please contact us on 03 6332 9353.

Latest News