Hello, this is Brian Herd from the Elder Law Section at CRH Law, talking to you today about what is the effect of separation on your will?
We lawyers tend to spend a lot of our time, our valuable time, myth busting. That is, debunking or demystifying those urban legal myths that circulate out there in the community. Some of those myths include things like, “If I lose my capacity to make financial decisions my next of kin, my spouse, my children, can make decisions for me”. Or, “My superannuation will be paid to my estate when I die.” Or, “If I give one dollar to that ingrate child, that will stop them from changing my will.” Or even, “Aged care is free.”
They’re the sort of myths that circulate that we try to debunk. There’s another one that’s circulating even more these days in relation to older people, and it’s this. The relationship breakdown of marriages, for example, amongst older people is increasing. Many older people however in this situation don’t follow the usual path of separation leading to divorce. Instead, their relationship has been rusted on for many years, for ions even, and as a result they don’t necessarily want to go through the hassle and the heartache of disrupting their society or their family life by going through a formal process such as divorce.
They tend to put up with it, as they say. They marinate in a relationship that really has ended but they don’t want to formally end. Generally speaking as well, these people have made a will many years ago giving everything to their spouse which is the general way that people do it. The reality is however that when you separate you often find that both your heart and your head come to the same conclusion. That is, you don’t necessarily want to leave anything to that spouse that you’ve been separated from. This is where the myth arises about separation and can I bust the myth of separation.
The first myth is this, that separation changes your Will. No it doesn’t. Separation does not change or revoke your Will or indeed your enduring power of attorney. Only divorce can do that. If you are separated but don’t divorce the Will that you made many years ago or that enduring power of attorney that you made many years ago will still be what it was and is, unless of course you change them. The second myth that needs to be busted is that even if you do change your Will to disinherit your spouse, unless you divorce, if you should die before your spouse that spouse still can challenge your Will, whereas they could not of course if you had divorced.
The reality is divorce has significant impacts upon your legal relationship with your spouse but separation does not. In the end, life is full of choices. For you it’s a choice between being separated and staying separated or doing something to effect change to your legal arrangements that may more truly reflect your desires and your wishes. Hopefully today this video will give you some information, at least to make some informed choices if that’s what you wish.
Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.