In modern times it can be common for relationships to end and for people to go their separate ways without any formalities. In such situations it is important for people to update their will to ensure that their property is disposed of according to their intentions. If they do nothing and pass away, their former partner may still receive any benefits left under their will.

The Wills Act 2007 states that if your will appoints a spouse or partner as executor or trustee, or names them as a beneficiary in the will, and there is an order for dissolution of marriage or legal separation in place, the provisions in your will relating to the named spouse or partner become void. The will is still valid, but it is interpreted as if your former partner has died before you (unless you have made it clear that the provisions in the will are to apply regardless of any order in effect). This means that any “back-up” clauses in the will (if you have them) still apply. If there is not a “back-up” clause in the will, then intestacy rules will apply. In these circumstances your estate would be distributed according to the rules prescribed in the Administration Act 1969.

Conversely, if a couple has parted ways but they have not taken formal steps to legally separate from one another then any gifts in the will left to the other are still enforceable, regardless of what the parties may have intended or how they viewed their relationship status.

There are many situations where a relationship change may have unintended consequences in respect of your estate including:

  • If you have not legally resolved your relationship properly, then a former partner may still be entitled to make a claim against your estate.
  • If you marry and do not update your will then your will is automatically revoked unless it was made in contemplation of marriage. Without a valid will you will die intestate and the Administration Act will determine who receives your assets.
  • If you informally part ways with a spouse or de-facto partner without updating your will, your original will still applies. Your former partner may still receive any benefit left to them even if this was not your intention when the relationship ended.
  • Any property jointly owned with a former partner will still pass via survivorship to a former partner upon your death. Any jointly held assets should be severed upon separation to ensure that your portion of the asset forms part of your estate.

If you have had a change in personal circumstances or things may change in the near future, it is always a good idea to assess your will and ensure that it is both valid and is in line with your intentions. Many of our clients own a variety of assets, which can include jointly held assets and trust property. It is important to understand how your assets are owned and where they would go if you were to pass away. We recommend reviewing your will in light of any life changes to ensure that it is still a good reflection of your intentions and to ensure that your asset ownership and will would not result in any unintended consequences if you were to pass away.

Contact us if you think you may need to review or update your will.