06 August 2018

Estate planning in times of separation

The battle over the $1.8 million estate of Cecilia Haddad, who died in tragic circumstances earlier this year, took a turn today with Cecilia’s father conceding that she remained married to her estranged husband at the time of her death.

Even though both property proceedings and divorce proceedings had been started in the Family Court of WA before her death, Cecilia and her husband had not yet formally divorced, and no Will has been found, meaning that Cecilia’s estranged husband may ultimately be entitled to her entire estate.

In the upheaval of a relationship’s breakdown, it is easy to leave aside the question of updating your estate plan for another time, especially with the knowledge that a Will is invalidated upon divorce. But it is important to remember that separation does not have the same effect.

With the courts requiring divorcing couples to be separated for at least one year before a divorce will be finalised, there is a long period of time where your previous Will, which may provide for your entire estate to go to your estranged partner, remains in force, and if you have no Will your estranged partner may be able to successfully argue that your estate should go to them.

As a consequence, the separation period before formal divorce is one of the most important times in your life that you should make sure that you have an estate plan in place that still works for you.

Andrew Bower began his legal career as a law clerk in 2008, whilst studying a Bachelor of Laws and a Bachelor of Commerce majoring in finance at Murdoch University.