Don’t Be Caught Without a Will - The Family Law Consequences

16 JUNE 2016 FAMILY LAW & DE FACTO RELATIONSHIPS
Family law and Wills

Family lawyers spend a lot of time negotiating, formalising and implementing property settlements. At the end of your family law case, it is tempting to assume that the hard work has been done, and that the only remaining step is to finally get that divorce and move on. But what happens if you die while you are still legally married to your long since separated spouse?

In New South Wales, when a divorce order takes legal effect, it automatically voids any gift in your will to your former spouse. The rest of your will remains valid.

If, however, you die before you are legally divorced, your spouse will still receive their entitlements under your Will.  If you die without a valid Will, and are not yet divorced, the law of intestacy may mean that your [separated] spouse receives some or all of your estate.

In a recent case, the parties concluded their property settlement, but had not yet divorced. The husband, who was in his mid-50s, died suddenly from a heart attack and did not have a valid will. Although the Court had recently made orders for a property settlement, the law of intestacy meant that the husband’s share of the settlement went to the wife. It could hardly be said that this was the husband’s testamentary intention.  It is likely that he would have preferred to leave his estate to his children, his new partner, and other friends or relatives. This aside, the legal fees associated with the family law Court proceedings and the negotiations in the property settlement were all wasted, as due to the husband not having a valid will the wife ended up receiving everything.

This situation can be easily avoided – in every property matter, we consider whether it is appropriate for the client to sign a new Will that excludes their separated spouse and reflects the changes in their circumstances.  If the client is still legally married and does not have a will, we will often draft a simple will that takes the client’s circumstances into account. 

Whilst estate planning is a specialised area of law, a simple Will can be prepared easily and for a reasonable (fixed fee) cost.  This will ensure that you have a valid will (that reflects your circumstances and intentions) while we work on your settlement. If you wish to make detailed arrangements at the conclusion of your matter, our specialist estate planning lawyers are available to assist you.