The Need for a Current Will – Marriage and Divorce

I was playing at the Cambridge Bowling Club recently (nice venue) and was absolutely delighted to be recognised by one of the opposing bowlers, who advised me that he had just read the article on Bigamy in “Legal Corner” on page 29 in the October edition of Jack High (edition 84).

We had a bit of a chat and he expressed surprise that people who separated did not, at the same time, get a formal divorce, thereby putting finality to their (former) matrimonial relationship.

As discussed in the Bigamy article, the separation process usually occupies all the time and attention of the parties and sometimes they simply do not have the energy to deal with the formality of a formal divorce (much to the chagrin and sometimes significant additional expense at a later time).

One of the other matters which people do not deal with but should be dealt with, even before a final order of divorce and certainly at the time of separation, is how the estate of either of the parties should be dealt with in the event that they died.

Marriage and divorce will cancel an existing will.

Until a divorce has been finalised, an existing will remains in force.  Just think about it.  At the time that you are separating or in the process of getting a divorce, the last person in the world you would want to inherit your estate is usually your former soul-mate!  But 99% of Wills made during a marriage leave everything to the spouse!

The moral of this story is that as soon as a relationship between spouses breaks down, fresh Wills should be contemplated.  This is to ensure that, for example, the deceased’s estate is directed to the children or other deserving parties and away from the soon-to-be-former spouse.

Note that if there is no will, i.e., the spouse dies intestate, then of the statutory regime in Western Australia provides that the soon-to-be-former spouse will get a relatively significant portion of the estate.  Here, again, the devolution of the estate may go in a  direction which would make the deceased “turn in his/her grave”.

Another problem arises.  The Inheritance (Family and Dependants Provision) Act provides that certain categories of people are entitled to bring a claim in relation to a deceased person’s estate if they believe that they have not received what they should have  from the deceased’s estate.  I wrote about this legislation and its consequences on page 34 of the April-May 2010 edition of Jack High.

Thus, whilst a person remains married to another person there is a risk, one way or another, on death of the first dying that some (or all) of their estate may find its way into the survivor’s hands.

How do we solve this problem?

The way to do it is to ensure that an up-to-date will is in place at all material times (please note that special provisions need to be included in a will which is made in contemplation of an impending divorce or marriage as a divorce or marriage will cancel an existing will) and people who are no longer desirous of remaining together as man and wife should  immediately seek legal advice and preferably, if married and the relationship has irretrievably broken down, make a formal application for a divorce at the earliest available opportunity.

One of the downsides of getting an early divorce is the cost of getting married again to the previous spouse.  But this cost is significantly less than the consequences of not severing, at law, the previous marital relationship!

Get trusted legal advice from FLSD who ensure their team of experienced family lawyers in Perth are ready to help you. Contact us today.

By |2018-12-14T11:05:25+00:00July 18th, 2014|Blog|0 Comments

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