Why separation is the moment to review your will

This is the point most people miss, and it is the one that causes the most damage. In Victoria, separating from your spouse does not change your will. If you separate on Monday and die on Tuesday, the will you made while happily married still operates, and the person you have just left may inherit your estate and act as your executor.

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Divorce is different. Once a divorce order takes effect it revokes a gift to your former spouse and their appointment as executor, though the rest of the will stands. But divorce usually comes at least twelve months after separation, and often much later, which leaves a long and dangerous gap.

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The same applies to superannuation death benefit nominations, to life insurance beneficiaries, and to enduring powers of attorney. Every one of them may still name the person you have separated from. Reviewing these documents should happen in the first weeks after separation, not after the property settlement is finished.

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Wills

A valid will in Victoria must be in writing, signed by you, and witnessed by two people who are present at the same time. Homemade and kit wills fail more often than people expect, usually on witnessing, on unclear wording, or because they do not deal with the whole estate.

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A well-drafted will does more than name beneficiaries. It deals with property that passes through your estate, it appoints an executor you trust, deals with the residue of your estate so nothing is left undisposed, considers guardianship for young children, and where appropriate uses a testamentary trust to protect an inheritance from tax, creditors or a beneficiary's own relationship breakdown.

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If there is no will

Dying without a valid will is called dying intestate, and the Administration and Probate Act sets out who receives your estate. The formula depends on whether you leave a spouse or domestic partner, whether you have children, and whether those children are also the children of that partner.

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The result is often not what the person would have wanted, and it takes longer and costs more, because someone must first apply for letters of administration before anything can be dealt with. Blended families are where intestacy causes the most difficulty.

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Probate and estate administration

Probate is the Supreme Court of Victoria's confirmation that a will is valid and that the executor may deal with the estate. Where there is no will, or no executor able to act, the court grants letters of administration instead.

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Not every estate needs a grant. Small estates, and assets that pass outside the estate such as jointly owned property, may not require one. Banks and land titles offices set their own thresholds, so it is worth checking before assuming an application is necessary.

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Once a grant is made, the executor calls in the assets, pays debts and tax, and distributes what remains. Executors carry personal liability for getting this wrong, which is why distributing early, before the claim period has passed, is a mistake we see regularly.

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Challenges to an estate

Victoria allows an eligible person to apply for further provision from an estate where adequate provision has not been made for their proper maintenance and support. Eligible people include spouses and domestic partners, former spouses in some circumstances, children including adult children and stepchildren in some circumstances, and certain dependants.

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There is a strict time limit: six months from the date of the grant of probate or letters of administration. Estates are also challenged on other grounds, including that the will-maker lacked capacity, did not know and approve the contents, or was unduly influenced.

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Careful drafting, contemporaneous file notes and, where capacity may be questioned, a medical opinion at the time of signing, all make an estate far harder to disturb.

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Powers of attorney and medical decisions

A will only operates after death. If you lose capacity while alive, your will does nothing. Two documents cover that gap in Victoria.

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An enduring power of attorney under the Powers of Attorney Act 2014 lets you appoint someone to make financial decisions, personal decisions, or both, and it continues to operate if you lose capacity. You can also appoint a supportive attorney to help you make your own decisions rather than make them for you.

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A medical treatment decision maker, appointed under the Medical Treatment Planning and Decisions Act 2016, makes medical treatment decisions if you cannot. You can also make an advance care directive setting out instructions or values to guide those decisions.

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Frequently asked questions

Does separation cancel my will?

No. In Victoria, separating does not revoke your will or any gift in it. Until you make a new will, your existing will stands and your separated spouse may still inherit and act as your executor. This is the single most common estate planning gap after a relationship ends.

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Does divorce cancel my will?

Divorce revokes a gift to your former spouse and their appointment as executor, but it does not revoke the rest of the will. Relying on divorce to fix your will is risky: it only happens at least twelve months after separation, and it leaves the rest of an out-of-date will in place.

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What happens if I die without a will in Victoria?

Your estate is distributed under the formula in the Administration and Probate Act, which depends on whether you leave a spouse or domestic partner and whether you have children. Someone must apply for letters of administration first, which adds time and cost. The outcome frequently differs from what the person would have chosen.

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Is my superannuation covered by my will?

Usually not automatically. Superannuation is generally held by the fund trustee and is not an estate asset unless it is directed there. To control where it goes you need a valid binding death benefit nomination, or a direction that the benefit be paid to your legal personal representative. Nominations lapse in many funds, so they need reviewing.

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Can someone challenge my will?

Yes. An eligible person can apply for further provision from your estate, and a will can also be challenged on grounds such as lack of capacity or undue influence. Applications for further provision must generally be made within six months of the grant of probate or letters of administration.

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How long does probate take?

It depends on the estate and on the court's workload. A straightforward application is usually granted within several weeks of filing, and longer if the Probate Office raises requisitions. Administering the estate afterwards commonly takes several months, and executors should not distribute before the claim period has passed.

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Do I need a power of attorney as well as a will?

Yes, they do different jobs. A will operates only after you die. An enduring power of attorney operates while you are alive but unable to make decisions or you wish for someone to make decisions for your benefit, and a medical treatment decision maker covers medical decisions. Most people need all three.

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Talk to a Melbourne wills and estates lawyer

Whether you are making a will, reviewing one after separation, or dealing with an estate, book a free 30-minute phone assessment, call 1800 976 214, or see us in the Melbourne CBD, on St Kilda Road, in Dandenong or in Pakenham.