A Will is a written, signed, properly witnessed document which confirms your wishes as to the person(s) you wish to look after your estate (executors) on your death and the person(s) you wish to benefit from your estate and in what proportion (beneficiaries).
Without a valid Will which accommodates your circumstances at the time of your death, it may be necessary for your next of kin, such as a spouse (including a spouse with whom you have separated) or child, to apply to the NSW Supreme Court for Letters of Administration. The person(s) who receive your estate will be determined by the applicable intestacy laws at the time of your death, which may be against your wishes and which may significantly benefit a spouse with whom you are separated.
If you currently have a formal Will, it is important to be aware of circumstances which may revoke or invalidate your Will. If you haven’t updated your Will since separating and your spouse is mentioned in your Will, your spouse will remain a beneficiary of your estate. Separating from your spouse does not automatically revoke a Will.
If you have divorced from your spouse since making your Will, the part of your Will that provides for your ex-spouse as a beneficiary and/or executorr and/or trustee will be revoked, unless a contrary intention appears in the will or underage children of the relationship are to receive an entitlement under the Will.
Circumstances which may affect the validity of your Will include:
Any “eligible” person has the legislative right to apply for Family Provision orders after your death if they believe they have not been adequately provided for under your Will.
Eligible persons include:
The likelihood of success of any potential Family Provision application depends on many factors including the nature of the relationship, financial dependency (if any), financial resources of claimant and extent of estate assets. You should disclose to your solicitor anyone you think may be disappointed if you do not provide for them in your Will as measures can be implemented to reduce the likelihood of success of a claimant on your estate.
Not all of your assets can be dealt with under your Will. If you hold joint assets with another person (including a separated or divorced spouse), these will pass to the surviving holder, such as joint bank accounts or real estate held as joint tenants.
If you have superannuation, pension entitlements, property held in a trust, life insurance or partnership property, these also may not be considered part of the estate that is distributed through your Will and needs to be addressed separately.
If you hold any of the above assets, it is important to disclose these to your solicitor at the time of preparing your Will.