It is an emotional rollercoaster when marriages fail and as a lawyer I’m always encouraging everyone, especially separated couples, to each get a will if they don’t already have one.
Making a will when you separate will prevent circumstances like this case study, reported in a Radio National Law Report on Wills & Intestacy in 2015.
A young couple in their 30s accepted their short, childless marriage was not going to work.
They separated and did a property settlement with the Family Court. They understood that to get a divorce you need to be separated for 12 months. Both moved on with their lives and started new relationships. The wife sent the husband divorce papers but he didn’t sign them.
The husband was a fit young tradesman who was looking forward to the future with a new partner of 15 months.
Unexpectedly, he died and did not have a will.
When there is no will, the estate is distributed according to Chapter 4 of the Succession Act, commonly known as the intestacy rules. The rules set out who are the eligible relatives who will inherit the estate in two parts – spouses and other relatives. If the deceased leaves a spouse and no children, the spouse is entitled to the whole estate.
By applying the intestacy rules, the separated wife was still a spouse and automatically received the husband’s estate of $600,000 (house, money and car).
Why? The divorce was not finalised and the husband did not have a will.
Why didn’t his new partner have equal standing with the estranged wife? His new relationship of 15 months was under the 24 months as set out in the Succession Act, so the law didn’t allow his new partner to receive his estate.
If the husband had a will he could have nominated who received his estate, whether that was his new partner, brothers, sisters and parents - not his estranged wife who received money in the property settlement and now got his estate.
Imagine the grief of the family and new partner losing a son and partner, who then had to accept the unjust situation of the husband’s $600,000 estate going to the estranged wife. That could have been easily prevented if he had a will.
Is your will up to date or do you have a question about your current marriage situation? You can contact us. We'll be able to help you via a quick phone call, ask us a question via email or even chatting with you online.