Separating from a partner is a deeply complex and challenging time. While it may not be high on your agenda, have you considered your estate planning? Or more importantly, the implications of not updating your estate planning without delay?

What happens to my Will upon separation?

The act of separation itself does not cause the revocation of any part of your most recent will. That means, that any benefits or appointments in favour of your former spouse remain valid and continue to have effect.

Passing away prior to divorce

Certain eligible people can make a family provision claim upon your estate. A claim of this nature is on the basis that one or more people weren’t adequately provided for in the circumstances.

Often the source of money that sustains these types of proceedings is in fact the estate itself, which causes an enormous drain of estate assets.

Risk of Family Provision Proceedings

In the NSW decision of Squire v Squire [2019] NSWCA 90, the Court considered a family provision claim from two of the three children of the deceased.

The deceased, Richard Squire, had only recently separated from his second wife, Corrine. They had started the process of dividing their assets and sale proceeds between themselves. Richard had communicated to his three children (all of which were from a previous marriage) that he had intended to update his Will and give everything to them, however he passed away unexpectedly without having done so.

Under his existing estate plan, Richard’s entire estate went to Corrine, as well as a substantial portion of his superannuation death benefit.

On Appeal, the Court found in favour of Richard’s children, who respectively had a substantial financial need. It highlighted that Richard had taken steps to start the division of assets after his separation from Corrine, and while this was informal in nature, these acts (such as selling their matrimonial home) were permanent.

This result may have been different if Richard had passed away prior to any division of his assets with Corrine occurring. Additionally, Richard’s estate would not have been so considerably diminished if he had immediately updated his Will at the time his relationship ended.

Moving Forward

Your Estate Planning Lawyer will discuss with you the appropriate estate planning documentation necessary. This may or may not include documentation to prepare for potential future litigation, depending upon your circumstances.

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