SingleMum.com.au Expert Opinion Panel Stephen Page – Lawyer
Making A New Will When Splitting Up
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Stephen Page for SingleMum.com.au | 16 November 2011
In the process of pain and shock of separation and divorce, often a will and related documents that concern death are the last thing on your mind…
After all, ensuring that you and your kids are safe, that you have enough money to put food on the table and a place to stay, that you don’t have a wrangle with child support, that you sort out your property settlement and above all have a decent working relationship with your ex, are much higher priorities.
However, it is essential to make sure that you plan in case something bad happens to you because the results can be spectacular if you haven’t done anything.
Many years ago I acted for a client who was seeking a property settlement from her husband. He was a fairly shady character and despite her best efforts to try and cut a deal and avoid court, she had to start court proceedings. The first day in court was on the Monday. As a last ditched attempt we had a round table meeting between the lawyers and our respective clients on the Friday afternoon before court. We weren’t able to settle, principally because my client’s husband was distinctly less than honest about the ownership of certain property.
On the Monday morning as I was getting ready to go to court, my client phoned me. She told me that she was not going to court. I told her that she had to go to court. She repeated that she wasn’t going. I was more green and less patient back then and I was insistent that she go to court. She then told me that over the weekend her husband had died. She was sad that he had died, despite all his faults, but that sadness was tinged with the joy that he hadn’t changed his will and instead of her getting 60% of the property (as she had sought by asking the court) she was getting 100% – which she later received.
Here are some essential tips when splitting up:
Always have an up-to-date will.
Most Australians don’t have wills. If you don’t have a will, then you can guarantee that your ex will get a share of your property. That’s just dumb. I always ask new clients as to whether they have a current will. I am always surprised but not shocked when I’m told that they don’t or that their ex or even worse to be told: “Yes, I have a current will, I have left everything to my ex”. I’m more shocked, but resigned to the reality that often other solicitors don’t ask the basic questions I ask.
Typically clients will want to leave everything to their kids, nothing to their ex, and have a close family member or friend to run their affairs when they’re dead, namely their executor.
It is good practice with any will to have a statutory declaration saying why no provision was made for your ex in the will. The statutory declaration is useful in case there is a challenge to the will by the ex later on. The lawyer preparing the will should also do the statutory declaration to ensure that relevant factors are included.
You can and should appoint a testamentary guardian in the will. That expresses your views as to who should care for your child. However, if there is a fight after you die about where your child lives, that will be a matter to be determined in the Family Court or the Federal Magistrates Court. Those courts won’t be bound in any way by what you have said but will take it into account. It is certainly much more powerful if there are, for example, issues to do with domestic violence, mental health, drug and alcohol consumption and the like to make sure that those issues are also set out in the statutory declaration because once you do it you can’t give evidence, but at least the statutory declaration can set out your position.
Have an enduring power of attorney.
I recommend for my clients to have an enduring power of attorney that covers both financial and health matters, both of which are to commence when the client loses capacity. Without one, if you get hit by the proverbial bus then your family may discover that your next of kin is your ex, something that you would want to avoid like the plague when you’re in ICU at hospital.
Severing the joint tenancy.
Most husbands and wives own real estate as joint tenants. One of the features of this is that if one of you dies then the other automatically gets their share. It is often a wise thing to sever or cut the joint tenancy, converting it to tenants in common, one of the effects of which is that your share will on your death be transferred either as per your will or the rules of intestacy, not automatically to your ex.
Update your superannuation and life insurance beneficiaries.
If you have had a bitter fight with your ex, you like most clients won’t want them to be your beneficiaries on your life insurance or superannuation but would want it to go to the estate or to the children. This is a matter that ought to be discussed with your lawyers and financial planners.
It is essential that anyone who owns property as a joint tenant and has separated gets specific legal advice about which option is best for them because every case is different.
Divorce, but not separation of a de facto couple, can end a provision in a will for your ex. However, you should never rely on divorce to end the terms of the will, as other parts of the will may remain valid. As always, get advice from a solicitor or a community legal centre.
Stephen Page, Lawyer
Harrington Family Lawyers
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Stephen Page is a partner of Harrington Family Lawyers, one of Brisbane’s oldest boutique family law firms, a member of the SingleMum.com.au Expert Opinion Panel, and is the author of the Australian Divorce Blog http://australiandivorce.blogspot.com. Admitted in 1987, Stephen has been an accredited family law specialist since 1996. A co-founder of a domestic violence service, Stephen has been a member since 1999 of a committee for a court based domestic violence service and since 2008 a board member of a charity linking business with the domestic violence sector…read more of Stephen Page’s Profile here
Stock photo from Graur Razvan Ionut
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