Estate Planning Archives - Page 2 of 2

How does marriage impact the terms of a will?

If you have a will and then decide to get married, that will is revoked once you exchange vows. The exception to this is if you make a will in the “contemplation of marriage”. That is, you decided to make a will to cover the circumstance of gaining a beneficiary (or beneficiaries) in the form of your new spouse.

A law change made on March 1, 2008, will also provide an exception to the ‘revocation-on-marriage’ will provision. If you got married on or after that date, any terms in your will which provide a benefit to your spouse, or any appointment of them as an executor or trustee of the will, or as a guardian (of children, for example) remains in place, though the will is otherwise revoked.

If you die and didn’t manage to update a will that was made before March 1, 2008, then you may be partially intestate depending on the terms of the will at the time you married. In this case, your spouse will likely be able to claim most if not all of your estate and a state’s intestacy laws will determine who is entitled to anything not left to your spouse in the will.

How does separation affect a will?

On its own, separating from your spouse has no effect on your will but as noted above, your now ex-spouse will have the largest claim on your estate should you die before you divorce. For this reason, legal experts in estate planning recommend you always update or amend your will if your separation from your spouse looks like it is permanent.

What happens if we then divorce?

Various changes to relevant legislation over the years affect the impact of divorce on your will. If you were divorced in NSW before November 1, 1989, the will you had in place at the time of that divorce is unaffected and your ex-spouse is entitled to any gift in your will, unless you specifically revoked or updated the document.

If you were divorced after the above date, any terms in the will in favour of your ex-spouse, or any appointment of them as an executor or trustee in your will, are revoked. The further law changes in 2008, however, mean that if you were divorced on or after March 1, 2008, and your ex-spouse appears in your will as a trustee for beneficiaries such as any children from the relationship, then your ex may still act as trustee despite the divorce.

Same-sex couples

The passing of legislation enacting marriage equality in Australia in December 2017 has complicated the legal picture around same-sex couples and their wills.

Many couples married overseas prior to the Australian law changing, subsequently making their unions legal in Australia. Expert legal advice should be sought to determine the validity of wills made by couples who were legally married overseas prior to the recognition of marriage equality in Australia and made a will after this time, particularly if it includes beneficiaries other than their spouse.

As this article demonstrates, the legal landscape when it comes to the impact of marriage, separation and divorce on estate planning can be complicated. It involves different pieces of legislation with different dates before or after which certain aspects of a will are valid or not. In this case, contacting a law firm with proven experience in estate planning matters such as Felicia Law Firm is a wise course of action. Contact us today on (02) 4365 4249.

Apr 09

Litigation Guardians – When Is It Appropriate?

By Felicio Law Firm Estate Planning, Litigation

One of the most common misconceptions about hiring a lawyer is that he or she will be solely responsible for making all of the decisions about your case both before and during any litigation.

It is true that your lawyer is legally and ethically obligated to provide the best possible legal advice and act in your best interest but provided you are making sound decisions based on the information he or she provides, your lawyer must also follow your instructions.

But what happens if you aren’t capable of telling your lawyer what to do? If you’re incapable of doing so because you’re under 18 years of age or disabled, the court will appoint someone called a litigation guardian to act on your behalf. In other words, this is someone who will effectively ‘step into your shoes’ to assess your best interests and instruct your lawyer accordingly.

To be selected as a litigation guardian, someone must:

be an adult;
demonstrate that he or she does not have any interest in the case that is opposed or potentially harmful to the interest of the person in need of his or her services;
be able to act fairly and competently;
consent to being a litigation guardian under applicable laws.

In some cases, relatives or other concerned parties will ask a lawyer to act as a litigation guardian. This is because a knowledgeable, experienced lawyer can act with a certain degree of objectivity and professionalism.

More often than not, the litigation guardian is a relative, friend or caregiver. Barring that, the court may select someone who does not personally know the person requiring a litigation guardian. In either case, the person chosen to fill this role must become familiar with the person’s situation and issue instructions that reflect their charge’s best interests.

Litigation guardians are generally appointed in the following types of cases:

Personal injury;
a criminal compensation application;
various matters related to Wills;
family provision applications.

A litigation guardian must be selected to represent someone in any Federal Circuit Court matter in which that party is incapable of understanding the proceeding or its potential consequences; or is incapable of fulfilling his or her legal obligations. Applicable court rules dictate that a minor must have a litigation guardian unless the court orders otherwise.

In accordance with Family Law Rules, a litigation guardian in the Family Court is known as a ‘case guardian’. In any Family Court matter a person who is legally classified as a child or is otherwise incapable of instructing his or her attorney, and/or fulfilling his or her legal obligations, must have a case guardian in order to initiate, continue, respond to, or intervene in proceedings. The only exception to this rule is if the court finds that the child not only comprehends the nature and possible consequences of the case, but can also make certain decisions and meet his or her legal obligations.

There are several methods for appointment. Someone can simply apply to be appointed a litigation guardian or case guardian. In certain circumstances, the court may ask the Attorney-General to nominate a litigation guardian or case guardian. The court may also make its own motion for appointment of a litigation guardian. It may also remove or replace a litigation guardian.

Once the appointment is finalised, the litigation or case guardian must advise all other relevant parties about it in writing.

A newly-selected litigation guardian or case guardian must also abide by applicable court rules. Furthermore, he or she must do everything ordinarily required of a party to the litigation. Finally, he or she may also do anything that the party to the litigation would ordinarily do for his or her own benefit.

As we have already noted, a litigation guardian must obtain proper legal advice. In this context, he or she must duly consider any proposals for resolution of the case, such as participation in alternative dispute resolution.

In accordance with a relevant court order, any costs incurred by the litigation guardian are paid by a party to the litigation or from the income or property of the person that he or she represents.

Estate Planning

What is the Effect of Marriage, Separation or Divorce on an Existing Will?

Once you’re of age and working, making a will – or what lawyers refer to as ‘estate planning‘ – is a highly recommended course of action to ensure your wishes are carried out in the event of your death.