A de facto couple separated and spent many months negotiating their Separation and Relationship Property Agreement.  Their individual lawyers advised them at the initial stages of the process that they should urgently update their Wills too, but neither of them got around to doing it. 

Their Wills left everything to each other, and appointed each other executor of their estates.

Ten years later, after both parties had re-partnered and the woman had had children with her new de facto partner, the woman passed away suddenly.  Her new partner searched for a Will in order to try to administer her estate, and it was eventually located.

Since she had not updated it after separation, that earlier Will was still in place.  The ex-partner was therefore still to be in charge of administering the woman’s estate. 

Even though they had agreed in the Separation and Relationship Property Agreement that the ex-partner would not have any right to make a claim on her estate, the Will still provided that the ex-partner would inherit all of her assets, leaving her children and new partner with nothing (unless they made their own legal claims against the estate).

The new partner ended up having to locate the signed Separation and Relationship Property Agreement, and then engage in a lengthy and expensive process to try to fix this situation, at a time when he was grieving for his partner.  He had to co-operate with the ex-partner through their respective lawyers when the ex-partner was applying for Probate of the Will, and negotiate an agreement with him as to how the deceased’s property would be split (subject to the Separation and Relationship Property Agreement). 

This could all have been avoided if the woman had updated her Will at the time she separated from her ex-partner, and made a new Will when she entered a new relationship, or had children.

There a few key things to note in relation to Wills:

  • Wills are not automatically revoked by separation. 
  • In the case of a dissolution of marriage or civil union (ie: divorce) following separation (which can be applied for once you have been separated for 2 years), then the provisions relating to the ex-spouse are deemed to be ignored, which often leads to other legal issues with the Will, and it often no longer reflects what the Will-maker wants.
  • Wills are revoked by marriage or civil union, unless you record in the Will that you are making it in contemplation of that marriage or civil union.
  • Wills are not revoked by entering into a de facto relationship. 

It is vital to review your Will after separation, regardless of whether you are leaving a de facto relationship, marriage or civil union.   The consequences of not doing so can be huge, and leave your loved ones to deal with a messy and stressful situation after you have gone.