EFFECT OF DIVORCE AND PROPERTY SETTLEMENT ON WILLS MADE DURING A MARRIAGE.

Associate, Emma Catterall in our Wills & Estates Team and Lawyer, Jordan Schweitzer in our Family Law team discuss how divorce and property settlements influence Wills created during marriage.

Throughout a marital relationship, married couples will entangle their lives, their property, and their Wills. Property can be purchased in joint names, and they often leave their estate to their surviving spouse upon their death. This is not uncommon, and unfortunately, neither is the breakdown of a marriage. The former couple is then faced with the unenvious task of unwinding their lives, property, and Wills.

Automatic revocation of wills upon divorce

The Wills Act 1970 (WA) automatically begins this un-entanglement process by providing that a Will is revoked upon the couple being granted a divorce. This automatic revocation does not take effect if the Will states a clear intention that it should not be revoked upon divorce. However, such a clause will not be included in the Will if divorce was not in contemplation at the time it was written. Clearly, a happy couple will not have this contemplation in mind at the time their Wills were prepared. Consequently, if a member of the former couple subsequently dies after divorce and they have not made a new Will, they have died intestate (without a Will). The deceased’s estate would then pass according to the Administration Act 1903 (WA), regardless of the deceased’s wishes or intentions.

No automatic unwinding of joint property

If a couple is (or were) married, the unwinding of their property can be achieved under the Family Law Act 1975 (Cth) by seeking property orders from the Family Court of Western Australia. Generally speaking, the former couple will divide all the property of their marriage between themselves, so that no property remains held jointly. However, unlike their Wills, this process is not automated upon divorce and the couple’s property may stay entangled until the limitation date expires, or one party passes away.

Joint property will not form part of the estate of the first to die

Both during and after marriage, only the property solely owned, or owned as tenants in common, will form part of that person’s estate upon their death. Any jointly held property would instead pass to the survivor. For example, a family home is often held as joint tenants, and under the right of survivorship, it would pass to the surviving joint owner and will not pass according to the Will of the deceased joint owner. Where the joint owners have separated, dividing joint property via property orders in the Family Court can provide certainty as to which assets will form part of either party’s estate upon their death and prevent such property from passing to their estranged former partner.

Executors able to continue property proceedings upon death

If a couple separated late in life, they may run the risk of passing away before Family Court proceedings dividing up their joint property can be finalised. Because joint assets would be retained by the survivor, this could potentially leave the beneficiaries of the deceased with little in the estate to inherit. By preparing a new Will after separation, the Executors of that Will can continue proceedings in the Family Court on behalf of the deceased. Upon the completion of the Family Court proceedings, any of the joint property retained solely to the deceased would form part of their estate and pass per their Will.

Conclusion

While the un-entanglement of a marital relationship may be difficult, it is not a Gordian Knot. Rather, there are a number of matters to consider upon the breakdown of a marriage and prior to obtaining an order for divorce, each of which should be given consideration:

• Is your Will going to be automatically revoked upon divorce?
• Should you make a new Will in contemplation of divorce?
• Is there any jointly owned property that will not form part of your estate upon your death?
• Should you commence property proceedings so that joint property does not inadvertently pass to your former spouse?

Contact us today by emailing Emma Catterall at emma.catterall@hhg.com.au or Jordan Schweitzer at jordan.schweitzer@hhg.com.au or calling us at (08) 9322 1966.

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*This information serves as a general guide and does not constitute legal advice. It is based on our research and experience at the time of publication. Please consult our knowledgeable Legal Team for any specific inquiries or advice relevant to your circumstances, as the content may not have been updated subsequently.