How does a separation affect a Will dispute in NSW?

Published 11 Sep 2018

An existing Will is usually affected when someone is married or divorced in New South Wales. But what happens when a person is only separated from a spouse?

The Succession Act 2006 has guidelines in place that govern the treatment of a Will in the event of a legal union or dissolution. However, a couple must be separated for at least 12 months before a court will finalise a divorce. Until then, the Will would not be impacted by the separation.

How does a marriage affect a Will?

Usually a marriage revokes a Will that was already in place. The exception is if a Will was created in anticipation of the union. In this case, the testator's intention to get married does not have to be written into the Will and can be proved in other ways.

How does a divorce affect a Will?

A divorce or an annulment cancels any gift or disposition in a Will to the former spouse. Additionally, if that person was listed as an executor, trustee or guardian in the Will, that appointment is also revoked.

The exception to this guideline is if children of the separated couple are listed as beneficiaries in the Will. If the spouse was named trustee of property left to them, the divorce would not cancel that appointment.

The law states that to be considered a legal divorce, the separation must be one of the following:

  • A divorce order under the Family Law Act 1975 of the Commonwealth.
  • A degree of nullity by the Family Court of Australia.
  • Dissolution of the marriage outside of Australia, as long as it is recognised under the Family Law Act 1975 of the Commonwealth.

Because the Succession Act 2006 only outlines revocation in the event of marriage or divorce, a separation would not revoke the partner's assets under a Will. Any gifts to a spouse would not be affected unless the document had been revised to indicate otherwise.

Because these complex cases can turn into lengthy disputes, it's important to ensure your Will is always up to date.

If you believe you are eligible to contest a Will, get in touch with us today for a free consultation. Our experienced team of lawyers at Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers can assist you with a claim.

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