Separation is a significant life event that can have profound legal and financial implications, especially regarding your Will. At Core Legal Wellington, we frequently emphasize the importance of keeping your Will updated, particularly when circumstances change. However, it’s not uncommon for individuals to overlook this crucial step during emotionally taxing times.

What Happens to a Will After Separation?

When a marriage or civil union ends, the terms of a Will are generally rendered inapplicable concerning the former spouse’s entitlement to property or rights to administer the estate. However, there’s a key complication: divorce cannot be finalized until the couple has lived apart for at least two years.

During this period, couples often resolve their relationship property matters through a Relationship Property Agreement (RPA). While an RPA outlines how assets should be divided, it may not override the statutory default rules if one spouse dies before the divorce is finalized or before creating a new Will.

A Recent High Court Case: O’Donoghue v Comia

A 2023 High Court case highlights the potential complexities. In this instance, a separated couple had entered into an RPA, which provided for an unequal division of their matrimonial home’s proceeds. Both parties agreed to this arrangement, acknowledging the reasons behind it.

However, one spouse passed away before the divorce was finalized, and there was no Will in place. The surviving spouse sought to claim the entirety of the deceased’s estate under the default rules of the Administration Act.

The High Court ultimately found that an RPA could override statutory default provisions, provided it met the safeguarding conditions of the Property (Relationships) Act 1976. In this case, the matter was referred to the Family Court to resolve compliance issues.

Why Updating Your Will Is Crucial

This case underscores the importance of creating or updating your Will following separation. Without a valid Will, statutory rules can lead to unintended consequences, including:

• A former spouse claiming your entire estate.
• Significant legal disputes and associated costs.

By updating your Will, you ensure that your wishes are clearly documented and legally enforceable, avoiding potential conflicts and preserving your intended legacy.

Conclusion

Separation is an emotionally and legally complex time, but updating your Will is a simple step to protect your interests. At Core Legal Wellington, we provide expert guidance to help you navigate this process. Contact us today for tailored advice on estate planning, relationship property, and ensuring your Will reflects your current circumstances.