An Oversight with Massive Consequences
In this podcast, our Estate Planning Lawyer, Elise Jaques discusses one phenomenon that occurs more often than you would think!
Speaker 1: At Big Law, we’re big on providing you great legal help. If you have a family law, business law,, commercial law, or conveyancing issue, we’re here to help. Make an appointment by calling you on 3482 6900, or visit us at biglaw.com.au. Now, here is your podcast.
Dan: There’s plenty of life’s events that warrant a review of all your estate planning, things like your will, enduring powers of attorney, advance health directives and the like. But perhaps one of life’s unfortunate events, separation, brings a degree of urge for you to get these things under control. Well today, I’m with Elise Jaques, an estate planning lawyer at Big Law. Elise, can separation impact a will?
Elise: Yes, Dan. In short, your separation can have an impact on your will. Now the law has different scenarios, however, for de facto relationships and marriages. How your will is impacted will depend on the relationship you were in.
Dan: Okay, so what happens if a person asks a question like, “If I’m separated from my de facto partner or my spouse,” at what point in the breakdown of the relationship can that will be affected?
Elise: That’s a really important question, Dan, because the difference in the relationship can significantly impact on when your will may be revoked. So firstly, if you’re in a de facto relationship, then the ending of your de facto relationship revokes your will, either partially or fully. In the circumstances where you are married, however, and you have only separated from your spouse and not divorced, then your will continues to apply. If you were married, only a divorce will revoke your will.
Dan: So, Elise, does it matter if a person’s will is revoked by a divorce or separation from the de facto partner?
Elise: Dan, it will matter if you still want your ex-spouse to receive a benefit from your will. It will also matter if the only beneficiary is your ex-spouse, as you will then die intestate, meaning without a will.
Dan: So conversely, what if the former de facto partner or the spouse wants to still be included in the will, and there’s an agreement in that in regard to that?
Elise: Look, you can actually include your former de facto partner or spouse in your will, however the law provides that you do need to insert a clause in your will that you would still like to provide for them.
Dan: So what happens if a person separates from their spouse and they do not change their will?
Elise: In simple terms, until you divorce, your existing will continues to apply. Your spouse would still be the executor and they would still take any gift you had made for them in your will.
Dan: Okay, so we know that lots of people don’t actually have a will, which is insane, but it’s a fact. What happens in that circumstance?
Elise: So if you don’t have a will, then you die intestate, and the law provides how your estate is to be distributed under the intestacy rules in Queensland.
Dan: Now what about other important things like enduring power of attorney. How does separation impact upon that important document?
Elise: Dan, there are several circumstances which can affect your enduring power of attorney, including if you get divorced. Unfortunately, merely separating from a spouse or de facto partner will not actually revoke your enduring power of attorney. If you do divorce your spouse, then your enduring power of attorney will actually be revoked to the extent that it appoints your former spouse as your attorney.
Dan: Obviously getting legal advice on this early on is vitally important.
Elise: It’s crucial, Dan.
Dan: Elise, thanks for joining me.
Elise: Thanks, Dan.
Speaker 1: Thanks for listening. Need further information? Simply call 3482 6900, or visit us at biglaw.com.au.
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