IT’S never fun thinking about your will.
Let’s face it, the thought of your will goes hand in hand with the thought of your demise.
It makes it all the harder to think about your will when you find a new love or see the end of an old one.
However, failure to make changes to your will when there is a change of a relationship status can cause disputes amongst your loved ones whilst you are still alive or after your death.
So, with every new relationship or breakdown, you should review and update your will in order to protect the interests of other beneficiaries, including your children, upon your death.
Whether your new relationship is a de facto relationship or marriage, family law in Australia creates rights in your new partner’s assets as time passes.
The terms of your will (prior to the new relationship) do not protect your beneficiaries, as the rights of your new partner will, over time, take priority over their rights.
The following are some relationship status events that should trigger you to update and review your will:
When you marry, your existing will becomes invalid. Many Australians are unaware of this. If you fail to update your will when you marry, a large part of your estate may be left to your spouse.
This may not be a concern in first marriages, but it may be problematic if you have other people that you want to provide for, including any children from a previous marriage.
The only time that your will is not invalidated as at the date of marriage, is if you have a will that was entered into and which expressly states that it was made “in contemplation of marriage”. Apart from this exception, you will need to update your will when you marry.
This also applies to second marriages, if you remarry, the marriage will invalidate your existing will. If there is no valid will at the time of death, then your estate will be distributed in accordance with the default rules of distribution.
These rules are known as the “rules of intestacy”. Depending on the state or territory in which you live, your new partner may inherit everything or your children may receive a significant portion of your estate and even previous partners may also be entitled to a share.
As second marriages become more common and blended families increase, it is important that wills are accurately reviewed and updated when someone marries.
In Western Australia, getting divorced automatically revokes and invalidates your will, unless it was made in contemplation of the marriage ending. Again, in the absence of a will at the time of your death, your estate will be distributed under the rules of intestacy.
Entering into a de facto relationship
Living together with someone does not have the same impact on a will as marriage. However, as time passes the person that you are living with has rights.
Whilst de facto couples across Australia have had similar rights and obligations as married couples, proving a de facto relationship existed or did not exist is not always that easy.
The Family Court is plagued with disputes between people who claim or deny that they have been in a de facto relationship. It is important when contemplating entering into a de facto relationship to review and update your will.
By updating and reviewing your will, you may wish to protect other beneficiaries such as any children from a previous relationship and/or you may wish to provide adequately for your new partner.
It is most likely the surviving de facto has a strong claim to a portion of the estate, perhaps even a significant portion. Each state and territory has legislation which makes provision for eligible persons to make a claim against an estate where the deceased did not make adequate provision for a surviving de facto.
The courts consider a range of issues in making a determination, including the nature and extent of the relationship, the nature and extent of any obligations and responsibilities owed by the deceased to the surviving de facto, the de facto’s financial circumstances and extent of the deceased’s estate, to name just a few.
Updating and reviewing your will has become increasingly important since Australians are living longer for various reasons. Longer lives mean a longer time living on this earth and wanting companionship.
Many a widow/er will set-up house with a new-found love after their partner has passed away. Retirees are now entering relationships that can last five, 10 years or more.
If you separate from your spouse, the separation has no impact on your existing will. If you die whilst separated and not yet divorced, your assets will be distributed according to your will.
In most cases, your former partner will be the beneficiary. If this is not the outcome you want, it is highly recommended that you prepare a new will when you’re preparing to separate.
As separation rarely happens spontaneously and without thought, you have more time than you realise. Otherwise, prepare a new will immediately after you separate.