Divorce is never easy. As you focus on dividing assets and navigating the emotional challenges, it’s crucial to also think about updating your Will. In Western Australia, failing to update your Will during or after a divorce can have serious consequences, especially when it comes to family provision claims under the Family Provision Act 1972 (WA).
Why you should update your Will during a divorce
In Western Australia, your Will remains valid even during divorce proceedings unless explicitly revoked. If your estranged spouse is still listed as a beneficiary or executor, they could inherit a significant portion of your estate if you pass away before the divorce is finalised or if you fail to update your Will afterward.
Here are some reasons why updating your Will is essential during a divorce:
Spouse’s inheritance rights
Your spouse can still inherit from your estate if they are named in your Will, even if you are estranged. This could go against your current wishes.
Executor responsibilities
If your spouse is the executor of your Will, they could manage your estate after your passing, even if your relationship has broken down. Appointing a new executor can prevent this.
Children from previous relationships
An updated Will ensures that children from previous relationships receive the inheritance you intend for them.
Avoiding intestacy
If you die without a valid Will, your estate is divided according to law, which could result in your estranged spouse inheriting a significant portion of your estate.
Family provision claims in Western Australia
Even if you have a valid Will, family members in Western Australia can contest your estate under the Family Provision Act 1972 (WA). Your estranged spouse or children could apply for a larger share of your estate if they believe they weren’t adequately provided for.
Common issues in family provision claims
Spouse’s rights
Even after divorce, your former spouse could claim part of your estate if they were financially dependent on you.
Children’s rights
Children, including adult children, can claim if they believe they weren’t adequately provided for.
Blended family disputes
If you’ve remarried or entered a new relationship, your new spouse could also claim a portion of your estate, which could lead to conflicts with children from prior relationships.
Financial dependency
If a family member can prove financial dependence, they may be entitled to a larger share of your estate, even if you intended otherwise.
Steps to minimise family provision claims
While family provision claims can’t be completely avoided, you can take steps to reduce the likelihood of disputes:
Update your Will regularly
Ensure your Will reflects your current circumstances, especially during and after a divorce.
Create a Binding Financial Agreement (BFA)
This can define how assets are divided during divorce and help reduce future disputes.
Consider testamentary trusts
These can protect your assets and ensure that your beneficiaries receive their inheritance according to your wishes.
Seek legal advice
A qualified lawyer can help you navigate the complexities of estate planning and family provision claims.
Conclusion
Divorce is the perfect time to reassess your estate plans. Updating your Will during or after divorce is essential to ensure that your wishes are honoured and your loved ones are protected. Failure to update your Will could lead to unintended consequences, such as claims from your estranged spouse or family members.
For guidance on updating your Will or navigating family provision claims, contact Paul Coombs on 0433 806 146 or via email at [email protected].