28/04/2015

The sudden death of a man who had failed to sign his divorce application or to prepare a current Will has resulted in a devastating outcome for his family and new partner.

An unsigned divorce paper was at the heart of a family battle of wills after a young man who died suddenly unwittingly left his whole estate to his estranged ex-wife.  

Despite property proceedings being finalised in the Family Court, and the fact that the man had a new partner, the man’s failure to sign the divorce papers or to prepare a new Will meant that his ex-wife was still legally classified as his spouse and entitled to 100% of his estate.

Since splitting with his wife, the man had lived with his new partner for 15 months - just 9 months shy of the necessary cohabitation period to be classed as a de facto couple under the law.

Despite the man describing his new partner as “the one” to his family, the new partner had no claim to the deceased’s estate. Instead, under the intestacy rules, his estranged wife, from whom he had been separated for two years, was first in line for a bite of the man’s $600,000 estate, despite the pair finalising a property settlement two years prior.  

This case highlights the importance of regularly reviewing your current estate plan and updating your Will whenever there is a major event in your life. Ensuring you have a current and valid Will is an easy fix and can prevent sad outcomes such as this case, where the man’s family was left empty-handed.

Had the man signed the divorce papers when they were served on him by his estranged wife, any Will that he had in place during the marriage would be automatically revoked. However, as the definition of ‘spouse’ under the family provision claims legislation also includes former spouses, the man’s estranged wife may still have been able to pursue an action under those laws.

To overcome this unjust outcome, the man may have considered seeking court approval in relation to his former spouse’s entitlement to his estate. As part of the property settlement the wife should have been asked to agree to waive her entitlements under the family provisions legislation to part of her ex-husband’s estate.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.