The Succession Act in the context of Family Law

The Succession Act in the context of Family Law

Clients who have recently experienced the breakdown of a relationship are commonly concerned regarding the rights their former partner or spouse may have against their Estate.

Following separation, it is important to consider making a new Will appointing a new Executor and clearly setting out how and to whom you want your Estate distributed. It is also important to be mindful that a divorce or annulment of a marriage may cause your current Will to be invalidated[1].

Unfortunately, if your Will is invalid or you have specifically excluded your former spouse or partner under your current Will, provisions within the Succession Act[2] mean that a former spouse or de facto partner may still be deemed as an ‘eligible person’ who may bring a claim against your estate.

A possible solution to this is for you and your former partner to “release” your rights to make a claim against your respective estates as part of your property settlement or divorce process. With the Court’s approval, former partners may execute a legally binding agreement to release these rights[3].

This additional step as part of your Family Law settlement will provide you with not only peace of mind, but further protection of your assets.

[1] Section 13 Succession Act.

[2] Succession Act 2006 (NSW)

[3] Section 95 Succession Act.