Your Will is an important legal document that directs how your estate, which includes real property, cars and personal belongings, is to be dealt with after your death. If you are over 18 years of age and are of sound mind then you should make a Will.
In Victoria, the nature of your relationships may affect how your estate is distributed and therefore you should review your Will regularly, especially if any of the following occurs/applies:
- You get married;
- You enter into a domestic relationship;
- An executor and/or beneficiary of your Will dies;
- You have children or grandchildren (including biological, step or adopted); and
- You and your spouse separate or divorce.
If you die without a valid Will, your estate will be divided in accordance with the statutory provisions under the Administration and Probate Act 1958 (Vic) (“the Act”). This means you have no control over how your estate is distributed and those whom you wish to receive benefits from your estate may not receive anything. Further, if you die without amending your Will to reflect changed circumstances, the distribution of your estate may not reflect your intentions at the time of your death.
You may undo a lifetime of hard work, risk having your estate distributed in a manner that is contrary to your wishes and cause your loved ones unnecessary stress and anxiety if you do not seek legal advice to ensure your Will is valid and enforceable.
Whether you are marrying for the first time or the second or third time, marriage invalidates your Will unless your Will clearly indicates that it is made in contemplation of that marriage. If your Will was not made in contemplation of marriage, you and your spouse should make new Wills as soon as possible after you are married.
During the last decade a number of legislative changes have occurred to recognise the rights of partners to a domestic relationship, whether heterosexual or homosexual. However, it is important to remember that if you die without a Will then, under the Act, your partner will not be entitled to benefit from your estate unless the two of you have lived together for a continuous period of two years immediately before your death, or have a child together.
If you have not lived together for a continuous period of at least two years, and you do not have a child together, but you intend that your partner be the beneficiary to part or all of your estate, then you need a valid Will to protect your partner’s interests.
There are many situations where the effect of having children, whether they be your biological, step or adopted children or even your grandchildren, will affect how your estate will be distributed after your death.
It is strongly recommended that you seek legal advice regarding your obligations to your children after your death, especially children under the age of 18 years old.
If you have separated from your former partner or spouse, you should make a new Will as soon as possible. Unlike divorce, separation does not automatically invalidate the provisions of your Will that relate to your former partner/spouse. This means that, in the absence of a new Will, your former partner/spouse may be entitled to benefit under your estate even if you do not wish this to occur.
Upon divorce, any provision in your Will that relates to your former spouse becomes invalid. You should therefore make a new Will.
You should also ensure that after separation or divorce, you contact your superannuation fund to make or change your binding death benefit nomination
This article provides information that is general in nature and not a substitute for legal advice. Please contact Rudstein Kron Lawyers if you wish to obtain legal advice for your personal situation.