If you are going through a change in your family situation, it’s important to consider how this might have an effect on your estate planning considerations. Below we go through some key points.
Marriage
Under section 14 of the Succession Act 1981 (QLD), if you marry this will revoke your will. However, if your will contains clauses that relate to the person you have married then these clauses will remain valid, such as if you have appointed them to be your executor or if you have left them an amount of money.
All other parts of your will are revoked, including bequests you make to children or charities by way of example. It is therefore extremely important to review your will if you either intend on marrying or have recently been married.
It is possible to have a will drafted in ‘contemplation of marriage’ – this will ensure that once you are married your will remains valid.
Divorce/Separation
When you either separate from your spouse or divorce them, this also effects your will. Sections 14A to 15B of the Succession Act 1981 (QLD) deal with the effect of a relationship or marriage ending on your will. Essentially, these sections state that the will is to be treated as if your former spouse has ‘died’.
This means that any appointment of a former spouse as an executor or any bequests to them will be revoked. If they are nominated to be the trustee for any funds or property left to children of the relationship, this however will not be revoked.
It’s important to consider this as you should review who will be your executor if a former spouse is no longer going to act in that role. Many times, there will be a ‘back up’ executor (and sometimes not) – so you want to ensure that whoever is going to be your executor is someone you trust.
Superannuation and Life Insurance
Another estate planning consideration that is extremely important is your superannuation and life insurance. Your superannuation and life insurance does not (unless you have elected for it to do so) form part of your estate with the funds distributed in accordance with your will.
Divorce or separation will not necessarily revoke a binding death benefit nomination (this varies from fund to fund), and in most cases, if your former spouse is the beneficiary of any life insurance policy this will remain in place until you nominate a new beneficiary.
In relation to your superannuation fund, often it can be confusing as your superannuation fund may offer you the option of nominating a beneficiary online. It should be kept in mind that these are generally ‘non-binding’ nominations and again, will not necessarily revoke a previous binding death benefit nomination.
Sick or dying parties – Family Provision Applications
If you have separated from your spouse and are currently negotiating a property settlement you should also bear in mind what might happen if you or your former spouse were to pass away during the negotiations (prior to Court proceedings being commenced).
Should there be a high risk of either spouse passing away during the negotiations, then you may need to commence proceedings to preserve your rights to an alteration of property interests.
If either yourself or your spouse passes away prior to commencing Court proceedings, then you may have to consider make a Family Provision Application. To read more about Family Provision Applications you can read our article here: https://millersockhilllawyers.com.au/have-you-been-adequately-provided-for-in-your-loved-ones-will/
In Queensland, a Family Provision Application will only be successful as a former spouse (when divorce has already occurred) if they can demonstrate they are a “dependent former husband or wife or civil partner”, have not entered another relationship and they are ‘receiving, or entitled to receive, maintenance from the deceased’[1]. If the former spouse does not satisfy these provisions, then the application will fail.
For example, the case of Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) [2015] QSC 281 the husband and wife separated some years prior to actual divorce and were in the process of negotiating a property settlement but the divorce had already been finalised. During the negotiation process the husband died and the wife had not commenced proceedings. The wife made a Family Provision Application on the husband’s estate, however, was unsuccessful as the Court found she not entitled to receive maintenance.
Another issue that may arise with a spouse passing during negotiations is that if any real property is held as ‘joint tenants’ then should one party pass away then the other party automatically takes ownership of the property. Consideration should be given to severing a joint tenancy so that you are tenants in common, and thereafter you can include in your will, how your share of the property is to be dealt with by your Estate.
Guardianship of children
Another issue to be considered is the guardianship of children. Under section 61C of the Succession Act 1981 (QLD) a person can appoint a ‘testamentary guardian’ for surviving children. Section 61E of the Succession Act 1981 (QLD) states: “A testamentary guardian of a child has all the powers, rights and responsibilities, for making decisions about the long-term care, welfare and development of the child, that are ordinarily vested in a guardian.” And uses the example of matters relating to education or religion.
This may be an important consideration if you have gone through parenting proceedings and want to ensure that if you were to pass away, someone of your choosing is appointed to make decisions about your children that are in accordance with your wishes. It is also important to ensure your intention to have a testamentary guardian when you die is correctly reflected in your will, otherwise it may be interpreted that the testamentary guardian is only appointed if there is no other surviving parent.
However, it should be noted that a testamentary guardian will not be given the day-to-day care of your children if there is a surviving parent or an order otherwise made by a Court. A surviving parent can also make an application to revoke or suspend the appointment of a testamentary guardian.
Conclusion
Estate planning can be complex, and it is important to seek legal advice whenever your circumstances change, but particularly if your family situation is changing. The above information is general information, and you should seek legal advice for your specific circumstances.
If you require advice or assistance with your family law matter or your estate planning, then please contact our experienced team at Miller Sockhill Lawyers on 07 5444 4750.
[1] Succession Act 1981 (QLD), section 5AA.