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Home | Blog | What happens if one party dies and the Will wasn’t updated?

A Will is one of the most important documents a person is likely to make and updating a Will is just as important.

Brad and Angelina may spend many thousands of dollars arguing with each other about a property settlement but not consider updating their Wills.

Updating your will as your circumstances change

Divorce has the effect of revoking a gift in a Will to the ex spouse and their appointment as executor which would result in an intestacy and the estate would be distributed according to the Succession Act 2006.

Separation does not revoke any gifts or appointment as executor. Therefore, until Brad and Angelina are legally divorced a gift in their Wills to a each other is still effective. This can have disastrous consequences as Brad would receive that gift, which could be the entire estate, which in all likelihood is not what Angelina would want.

Brad and Angelina children will then miss out on receiving an inheritance from Angelina and would need to commence a family provision claim. If the children are minors, a person over the age of 18 would need to commence a claim on their behalf. If no claim is made and Brad has a new spouse or de facto partner, the children may miss out when Brad dies.

Additionally, if Angelina has appointed Brad as Trustee of property left to their minor children, divorce does not revoke this appointment and Brad would have control of the children’s money.

Similarly if Brad and Angelina own a property as joint tenants and do not sever that tenancy, the property will automatically pass to Brad. We can prevent this situation arising by registering a Transfer.  Brad’s consent is not required.

Another important matter to consider is updating any binding nominations in relation to superannuation. It is necessary to make a new binding nomination to ensure the superannuation is not paid to Brad.

It is therefore vital to seek legal advice upon separation in relation to estate planning. Our Parramatta office is home to an expert team of lawyers who can assist clients with all matters regarding divorce and separation, estate planning, deceased estates and will disputes. Call 13 43 63 today and speak to a specialist today.

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