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Wills After Divorce?

October 30, 2013
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Q   I am recently Divorced with 3 young children. I have a house but it is fully mortgaged to the bank. I made a will years ago. I don’t feel like I have a lot. Should I bother making a new Will?

A   Yes, you should! In fact, in your personal circumstances it is very important that you make a new will as soon as possible. Almost everyone agrees that making a will is a good idea but it is amazing how many people still leave this important matter on the long finger.

When you have been through a Divorce (and my advice is similar in circumstances where you have been through a Judicial Separation or have signed a Legal Separation agreement) your circumstances have very obviously altered significantly. In your existing will you may have left all your assets to your ex spouse. If so and if you do not make a new will then your assets will still pass to your ex spouse. Most people do not realise this fact.

In most (but not all) such cases your ex spouse will have waived his/her right to inherit from your estate under the Succession Act 1965. If this has occurred then you will be free to make provision for your children without having to include your ex spouse as one of your beneficiaries.

It is vital for anyone with children under the age of 18 years to make a will so as to ensure there are proper legal arrangements in place to provide for the children in the event of a parent’s untimely death. Where the child’s parents are or have been married to each other then both parents have legal guardianship rights. Usually, after a Divorce, both parents retain these Guardianship rights. In the event of the death of one of them the survivor will be the sole Guardian unless the deceased parent has made a will appointing someone to be Guardian in the deceased parent’s place. This person is called a Testamentary Guardian and will act as joint guardian with the surviving parent. The Guardian has the rights and responsibilities of deciding issues such as where and with whom they should live, their schooling and education, religious matters, health issues. If the surviving parent objects to the Testamentary Guardian the matter can be referred to Court for it to decide what is in the best interest of the children at the time of your death.

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