Should I wait until my separation or divorce is finalised before updating my Will?

Sometimes I get emails from people who are separating from their partners asking for a referral to a family lawyer.  They normally end the email by noting that once all the family law stuff is sorted, they’ll get back in touch about updating their Will.

To which I reply, ‘no no no no no no!’

Why?

Unlike divorce, mere separation does not affect your Will. If you fail to update your Will upon separation and you pass away, your ex is likely to inherit any property you left to them.  Similarly, if your Will names your ex as your executor and you are not yet divorced, they can take up that role regardless if you now want them to or not.

After divorce, under Victorian law, any appointment of your ex as executor or gift to them will be revoked.  But this may not occur if a court considers that this was not your intention.

It is much safer to clear things up with a new Will upon separation.

You don’t need to wait until the property settlement is finalised either, particularly if the Will is not to mention specific property, but rather to leave the entirety of your estate, say, on trust for your children or to a sibling.

In drafting the new Will, you will need to think about who you would want as your executor and trustee. When you were married, it was likely your spouse. But now who? Someone your age or younger is recommended. A sibling or a best friend is a good choice.  Else, a parent, aunt or uncle might be a good choice if they're in good health. It should be someone you trust and be someone who is in a position to manage your children’s inheritance until they reach adulthood.

You should also update your Powers of Attorney when you separate if you don’t want your ex taking care of things if you are incapacitated.

And if you start a new de facto relationship, you should update your Will again.  As time passes in this relationship, you each develop rights to each other’s property. These rights may conflict with the wishes set out in your Will. Else, you may wish for your new partner to inherit your estate, but the intestacy laws may not capture them depending on your living circumstances.

Separation and divorce is a complicated time.  But one easy thing you can cross off the list if you are separating is to update your Wills and Powers of Attorney.  Spend an evening providing instructions here and then we can get it sorted together, so you can securely move on into the next exciting chapter of your life.