Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Divorce and recoupling – how can this affect your Will


Many people are unaware that divorce has the effect of revoking parts of a Will. Wills & Estates Senior Associate, Lucy McPherson, discusses how changes in your relationship can affect your Will and how to avoid estate litigation from arising.

How does divorce affect your Will?

How a divorce affects your Will depends on which state or territory you reside. In some states, divorce will automatically render your Will invalid, and revoke particular parts of it.

The parts of your Will that can be revoked if you divorced, include:

  • A gift to your former spouse made by a Will in existence at the time of the divorce
  • Any appointment of your former spouse as Executor or Trustee of your estate, or Guardian of your minor children

This can be mitigated against if you provide specific contrary intentions that are clear in your Will.

If you divorce and then recouple, your new spouse has certain rights in relation to your estate, and this may not be something that you intended. It’s always best to seek specialist legal advice after a divorce in relation to your Will and how these changes may affect your situation. Your lawyer will be able to review your Will and see where any changes are necessary.

What happens if a separating couple become estranged, but do not formalise their divorce?

This is something that we see far too often. Unlike divorce, marriage separation does not have an effect on your Will. This means any assets that are gifted to your former partner in your Will would still be distributed to them if you die.

Understandably, this situation is not desirable for most couples who have recently split up and are estranged. It’s advisable to update your Will as soon as possible after separating from a spouse. Particularly when you consider the time that can lapse between separation and obtaining a formal divorce order. The period of separation that occurs prior to the divorce order and after the separation is one of the most important times to make sure your Will reflects your change in circumstance.

If you fail to update your Will after separation, and you pass away, your estranged spouse may inherit your property that you previously left to them.

One reason why we see this happen so often is because upon initial separation, there is often one spouse holding onto hope that they will reconcile the relationship. Because they are not ready to accept that the separation is final and that they are heading to divorce, they hesitate taking the step to update their Will. They may simply not be ready to acknowledge their change in circumstance.

After a separation, there is a great deal of emotion, among many other things, going through a person’s mind which tends to take priority over updating their Will. However, it is important to be cognisant of these issues because the end result could be catastrophic.

When it comes to recoupling, and there is a blended family situation, what happens then?

Depending on which state you reside in, as the law differs between New South Wales and Queensland, if your new spouse has children, those step-children may be eligible to bring a claim on your estate in the event that you die.

In QLD, under the legislation, step-children are eligible to bring a claim on an estate.

This is not strictly the case in NSW, however, there is a certain category that step-children often fall under if they are able to demonstrate they were a member of the same household as the deceased person and that they were dependent on the deceased person at a particular time during their life.

Blended family situations become quite complex because of these issues, including the right step-children have for making a claim on an estate. A Will drafter needs to be aware of these issues and the fact that those types of claims may be bought on the estate if they’re not adequately provided for.

Can a child from a previous relationship challenge the estate?

A child of a deceased person is eligible to contest a Will in both NSW and QLD, regardless of whether that child is from the first, second, or third marriage, whatever it may be. As long as the child can prove they have not adequately been provided for and they are able to demonstrate they have a significant level of financial need and that they should have been recognised under a Will, those claims tend to be successful.

This needs to be kept front of mind when drafting your Will. If you don’t provide for a child from a previous marriage, that child may bring a claim on the estate at a later time.

What are other reasons may an estate be challenged?

There are many different reasons to contest a Will. We find that the two main types of Will contests are:

  • Family provision claims (as mentioned above, in the example where a child from a previous marriage may have been left out of a Will)
  • A challenge to the validity of the Will itself, potentially on the grounds of undue influence, lack of testamentary capacity, or forgery and fraud. These challenges arise in situations where there is some sort of circumstance that calls into question the validity of the document and how that document came into place.

How can Attwood Marshall Lawyers help prevent estate litigation?

A highly skilled estate planning lawyer looks at your overall circumstances and can employ tactics in order to mitigate against litigation occurring in relation to your estate. At Attwood Marshall Lawyers, we take into account your specific personal circumstances, such as those around having a blended family, or how your estates may be structured, any significant funds held in a superannuation, or properties that may be jointly held. By considering all of these circumstances, we can do our best to make sure the end result is as you wish it and try to avoid litigation arising.

Attwood Marshall Lawyers have a dedicated team that practice exclusively in this area. For enquiries concerning Wills & Estates, contact Wills and Estates Department Manager, Donna Tolley, on direct line 07 5506 8241, email or free call 1800 621 071.

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Lucy McPherson

Estate Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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