Separation – Divorce and Wills

Two minute scenarios…

Wills are usually written to last a lifetime, however a separation or divorce is a key trigger for a Will review. We consider some of the issues surrounding these possibilities.

Scenario One… separation and divorce

Scenario: Chris and Angie, who have two young children, had their Wills prepared about 15 years ago, leaving everything to each other. Unfortunately they have recently separated.

What’s the issue? If one of them was to die before the divorce was finalised, their spouse would inherit their estate. If they are happy with that, there is no need to change the Will. Once they divorce, that part of the estate left to the ex-spouse is treated as though the ex-spouse predeceased the Willmaker, with the exception of WA where the entire Will would be revoked.

Solution: Chris and Angie can have Wills prepared now, noting that they are written in contemplation of divorce. That way the Wills will stay valid once the divorce is finalised.

Scenario Two… leaving it all to the children

Scenario: Chris wants to leave his entire estate to his children.

What’s the issue? If Chris is providing maintenance for his wife, he may need to provide for her in his Will in order to avoid a challenge.

Solutions: Chris should consult with a lawyer about the amount or income stream he might need to provide for his ex-wife in his Will. He should also review his Will in the future in case circumstances change again and he is no longer supporting her. At that point, he may be able to leave the estate all to his children without risk of a challenge.

Scenario Three… who looks after the inheritance?

Scenario: Chris needs to decide who is to control the children’s inheritance until they each turn 25yo, his preferred age at which they get control.

What’s the issue? Chris does not want his wife to control the children’s inheritance.

Solutions: Chris can appoint his sister as trustee of the children’s inheritances until they reach 25yo.