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Death after separation, but before divorce – How does it affect your Will?

Wills & Probate

The period between separation and divorce is a perilous time for those with Wills. This is because generally marriage separation has no direct impact on a Will – it remains valid, including all the provisions in the Will in favour of an estranged spouse.

Equally, if a person dies intestate (without a Will) after recently separating from their spouse, the estate is likely to be paid to the estranged spouse.

However, there are some limited circumstances where separation may impact a Will, as can be seen from the recent Court of Appeal decision, Squire v Squire [2019] NSWCA 90. In this case, the deceased died unexpectedly shortly after separating from his second wife. In the deceased’s will, he left the whole of his estate to his second wife, and if she didn’t survive him by 30 days, it was to be divided equally between his three children and his second wife’s two children by her first marriage.

Shortly after separation, the deceased and his wife took steps to effect a permanent separation, including by systematically dividing their assets. The principal asset of the marriage, a jointly owned home unit, was sold. However, settlement had not yet occurred at the time of the deceased’s death. The deceased had also made statements to his children about wanting to write a new will to reflect his changed circumstances.

Two of the deceased’s adult children made a claim for provision under the Will under the Succession Act 2006 (NSW). The primary judge dismissed their claims and held, among other things, that the deceased had an ongoing obligation to make testamentary provision for his wife. On appeal, this decision was overturned, and the adult children were successful in obtaining an order for provision under the Will. The Court of Appeal unanimously held that by engaging in a deliberate and systematic division of their jointly held assets and liabilities, the deceased and his wife had agreed on a final, albeit informal, financial settlement.

This informal financial settlement terminated any obligation of the deceased to make an ongoing testamentary provision for his wife’s maintenance or advancement in life. The Court of Appeal stated that to find otherwise would be unjust, in that it would allow the wife, because of the deceased’s sudden death, to retain property “to which she was not entitled under their informal financial settlement.” As a result, at the time of the deceased’s death, his adult children were the natural objects of his testamentary bounty.

Notwithstanding the outcome in the above case, Atkinson Vinden strongly recommends that once you have separated from your spouse, you contact us to update your will to reflect your new testamentary intentions. Disputes such as the one in Squire v Squire can be expensive and stressful (the Court of Appeal in that case noted that the legal costs incurred by the parties exceeded the amount of the provision sought to be made under the Will, which was a “wholly unsatisfactory outcome.”).