Working with Will and Estate Lawyers to write a Will is an important step in adulthood. Unfortunately, many people forget about altering that Will following a divorce or the breakdown of a de facto relationship.
How A Legal Divorce Impacts Your Will
In some states, such as Western Australia, a divorce will invalidate a Will in the event of a death. However, in New South Wales, there is no such loophole. NSW does contain a provision for divorce, which includes removing a divorced spouse as an executor and revoking any gifts listed within the Will for that former spouse. Even so, you should not rely on this provision, as it gives the former spouse potential grounds for contesting a Will.
There are only a small number of people who are eligible to force a Will dispute, and this includes immediate family members, stepchildren, spouses or de factor partners, and former spouses or de facto partners. The safest way to avoid a mess with deceased estate lawyers is to update your estate plan following a divorce.
If you die without a Will, it is known as intestacy. In this case, the rules of intestacy are applied. This means your estate will be distributed to your immediate family, with your spouse and any children being in line first. This can open the door for others to contest the settlement, including a former spouse or de factor partner.
Ensure Your Estate Plan Is Updated Following a Divorce
The last thing anyone wants is to leave behind a mess for their loved ones. Unfortunately, Will disputes are more common than you might think and families tear themselves apart in the battle to get what they believe they are owed.
The best way to avoid estate litigation lawyers and Will challenges is to sit down with a lawyer and update your Will following major life changes, including divorce, financial changes, moving abroad, having children, and the death of an executor or beneficiary. If you haven’t experienced any major life changes, you should review and update your Will every five years. Life can change quickly, and you don’t want to be in a position where the wrong person will serve as your executor.
Challenging a Will Following Divorce
If your former spouse has passed away and you believe there has been an unfair distribution of their assets, you may be legally eligible to challenge the Will. The obligation doesn’t always end when a divorce is finalised. The Succession Act 2006 allows for an ex-spouse or ex de facto partner to contest a Will if they shared a home at any point, or they were financially dependent on the now deceased ex-spouse or de factor partner.
However, while an ex-spouse is eligible to dispute a Will, proof is required. The court will consider the length of the marriage or de facto relationship, the contributions made by both parties, as well as the current personal and financial circumstances of the person contesting the Will. For example, if finances are still entangled, the couple still cohabitates despite the end of the relationship, or if there wasn’t a final division of assets. There is a time limit of twelve months following death to contest a Will. The first step in the Will challenge process is seeking legal advice.
If you believe you have a case, you should speak to estate litigation lawyers to find out how to proceed. AJB Stevens has a long and successful history of handling Will challenges and we can help you determine whether you have a case and assist you in the process moving forward. We understand how stressful it can be to lose someone and feel forgotten in the estate process – we fight for you.
Strategies to Avoid Will Estate Disputes
The most efficient way to minimise the risk of Will disputes following a death is to make a legally sound, crystal-clear estate plan. As long as the law provides a provision for Will disputes, there will be someone who may want to dispute a Will. However, by working with a legal professional and regularly reviewing and updating your Will, you will mitigate the risk of a dispute. If a dispute should arise, taking these steps will reduce the likelihood of someone successfully contesting your Will.
An estate lawyer will provide you with sound legal advice about how to structure your finances. Most importantly, it will be legally binding. If you believe there is someone who may contest your Will, you should discuss this with your lawyer so they can factor that into how you choose to distribute your estate. For example, by providing this person with adequate provisions, they are unlikely to make or be successful with a claim.
In other states, the property automatically transfers to a co-owner. However, in NSW, it can be grouped with the rest of the deceased estate’s assets. It’s important to discuss this with your lawyer when you draft your Will. Some people choose to transfer assets before death to avoid them becoming part of the estate, however, this can be a risky move and is one you should discuss with your lawyer. You should also employ an accountant to assist you in getting your financial affairs in order.
