Will in Contemplation of Divorce
Under section 14A of the Act a testator’s Will is revoked by their subsequent divorce unless the Will is made in contemplation of divorce. Similar rules apply to the contemplation of marriage clauses …
Contemplation of Divorce
While it may not be a high priority while going through a separation or divorce, it is critical that you change your Will.
The period of separation before a divorce a critical time to ensure your Will is updated. If you separate and then die before updating your Will, your spouse will still inherit any property you gifted to them under your Will. Likewise, if you have named your spouse as the executor of your Will, that appointment still stands. You will need to make a new Will.
This will in contemplation of divorce is 6 pages long.
Will Signing Instructions
How to Sign your Will
- You must sign and date your Will in the presence of two witnesses at the same time. It is best that all three persons use the same pen as proof of the fact that they were together at the same time.
- Your witnesses should not be beneficiaries or potential beneficiaries under your Will. There is a presumption at law that a beneficiary who has also witnessed a Will may have used undue influence in order to obtain a gift in the Will. The law therefore invalidates gifts to beneficiaries who serve as witnesses. The same applies to spouses of beneficiaries.
- Subject to the above, your Will can be witnessed by anyone who is of sound mind and at least 18 years old.
- You should review your Will in the presence of your witnesses, then sign it on the last page and the foot of every page, using your normal signature. Take care not to miss any pages. Then write the date on your Will.
- Both witnesses must see you sign your Will. They also need to see each other sign as witnesses. This requires you and your witnesses to be present at the same time.
- Your witnesses should view every page so they can confirm, if asked, that there were no amendments when you signed your Will. They do not, however, need to read the Will or know what it says.
- After you have signed and dated your Will the first witness must then sign at the bottom of each page and at the end of the Will immediately below the attestation clause in the space provided. The second witness then follows this same procedure. The witnesses should include their full names, occupations and addresses so they can be located in the future if it becomes necessary for them to verify that you signed the Will. You should confirm that each witness has signed where required. Do this while they are all still in the same room. Finally, make sure all pages of your Will are stapled together.
Storing Your Will
Keep your Will in a safe place and tell your executors where you have put the original. You may also consider giving your executors a copy of the Will. There is no requirement to register your will or do anything else with it.
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Will in Contemplation of Divorce
New South Wales
A full commentary on the law and practice as it currently applies to the drafting of wills and testamentary discretionary trusts.
A will is a document containing a person’s instructions as to how their property is to be distributed after their death. Failure to make a will results in the distribution of the assets of the deceased being determined by statute. The law relating to wills in New South Wales is covered by the Succession Act 2006.
However, the issues arising from including or excluding children from former relationships in clients wills are now commonplace. This demands an understanding of the options and pitfalls inherent in some apparent solutions as well as the provisions of the Succession Act 2006 relating to family provision claims. T
(b) banknotes or coins (unless forming a collection made in pursuit of a hobby or for some other non-commercial purpose),
(c) property held as a pledge or other form of security,
(d) property (such as gold bullion or uncut diamonds):
(i) in which the intestate has invested as a hedge against inflation or adverse currency movements, and
(ii) which is not an object of household, or personal, use, decoration or adornment,
(e) an interest in land (whether freehold or leasehold).
Spouse’s preferential right to acquire property from the estate
A spouse (where there is not more than one) has a right to elect to acquire any property from the estate at its market value at the date of death subject to conditions.
The election requires the Court’s authorisation if (a) the property forms part of a larger aggregate and (b) the acquisition could substantially diminish the value of the remainder of the property or make the administration of the estate substantially more difficult. The Court may impose such conditions as it considers just and equitable to address these matters, including a condition that the spouse pay compensation to the estate in addition to consideration to be given for the property and a condition as to costs. The Court must refuse authorisation if it considers that the matters cannot be adequately addressed by granting an authorisation subject to such conditions.
A spouse is not entitled to elect to acquire property unless mandatory provisions are complied with and the costs of complying with the provisions are paid by the spouse.
A spouse who is a personal representative of the intestate is not prevented from making an election to acquire property from the intestate estate by the fact that the spouse is a trustee of the intestate estate.
Nothing in this section confers on a spouse any right against a person who in good faith purchased for value from the personal representative of the intestate any property of the intestate.
An intestate’s personal representative must, within one month of the grant of administration of the intestate estate, give notice to the intestate’s spouse of their right of election stating how the right is to be exercised, and that the election may be subject to the Court’s authorisation and the circumstances in which such an authorisation is required, and that the right must be exercised within 3 months (or a longer period allowed by the Court) after the date of the notice.
Notice is not required under this section if the spouse is the personal representative, or one of the personal representatives, of the intestate.
The election must be made within 3 months after the date of the notice, or if the spouse is the intestate’s personal representative within 3 months after the grant of administration of the intestate estate.
The Court may, however, if it considers there is sufficient cause for doing so, extend the time for making the election.
Revising the will
Testators should be encouraged to review their will regularly. The events which may lead to a change of will include a change in asset holdings whether by disposition, acquisition or inheritance, a change by way of marriage or divorce or the entering of a de facto relationship or a change in tax or superannuation laws. Superannuation arrangements also need review particularly as nominations require renewal.