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Wills in Family Law Matters

A will is a written declaration made by a person (“testator”) stating how they wish their property to be dealt with after their death. Every person going through a separation should update their will to avoid unintended consequences. If you do not update your will and a divorce is granted, then any gifts in your will to your ex-spouse will automatically be revoked with the remainder of the will remaining valid. In these circumstances the effect of the will may not be as anticipated. This is why it is safer to update your will.

There are formalities which must be observed in order to make a valid will. These include how the document was executed (signed) and the existence of appropriate witnesses. The mental capacity of the testator should also be considered. If the mental capacity of the testator is doubtful then steps should be taken to ensure that their capacity is established and documented in case it is questioned in the future.

If there is no valid will upon death then the law of intestacy applies to determine how assets should be disturbed. There is the potential that assets will be distributed against the wishes of the deceased and in a manner which the remaining family may consider inappropriate. This is something to keep in mind, particularly in cases where there are blended families or you have separated but not yet finalised your divorce.

It is also important to consider your superannuation at this time and ensure that you have a “binding death nomination” in place. Failure to do so is highly likely to result in any death benefit going to your spouse even if you have separated and intend to divorce.

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