Most of our clients, after divorce, wish to leave their assets to their children or new partner, not the ex. This is particularly so if you have been to the Family Court to resolve how to divide up the assets – you don’t usually want to give even more of the net amount you receive to that former spouse later, if you die. As Divorce Lawyers, we recommend to our clients after a family law settlement (either a Binding Financial Agreement, a Consent Order or a Court decision) to:-
- Prepare a fresh Will and to specifically exclude the ex spouse (and say why) in the Will; and
- Prepare a Succession Act Deed – where both you and your ex spouse sign up now to exclude any future claim against the other on death; and
- If there is animosity and/or a substantial asset pool, lodge the Succession Act Deed with the Probate Division of the Supreme Court now,specifying that you each give up such claims and ask the Supreme Court to approve it now, and not wait until the death of one of you.
In a new case, the Court of Appeal of the Supreme Court eventually excluded a claim by an ex spouse but it took years, lots of legal costs (some not recoverable) to say nothing of the emotions in a bitter daughter vs. mother battle at Court. The Case
- Husband and Wife got together in 1988 and separated in 1990.
- The parties had one child together, a daughter.
- In 1992, the parties reached a documented fair settlement through the Family Court.
- From 1992, the Husband paid child support on time and in full until the daughter turned 18.
- In 2015, the Husband died with $5 million in assets and left his estate to his daughter.
- The Mother in 2015 ran a case against his estate seeking $750,000, or 15 % of his total wealth now.
- The Mother won the case in the Supreme Court!
- In 2017 the Court of Appeal overturned the First Judgment and provided guidance about what to do, in such circumstances. If (a) to (c) above had been implemented, there would have been no case. If the facts were just a little more favourable to the Wife, such as if he had defaulted on child support, the Appeal Court said, she could actually have won!
Questions to consider for a divorced spouse
- Is your Will up to date?
- Does your Will exclude your ex? Does it say why?
- Do you have a Deed excluding claims after your death?
- Should you go to the expense of “registering” the Deed at the Supreme Court?
If not, we invite you to discuss these topics with a member of our experienced Family Law team.
