marriage

How does divorce affect estate planning documents?

*This blogpost is limited to New South Wales. The laws in each State and Territory differ in relation to these matters.

Contrary to common belief, divorce does not affect the operation of a Power of Attorney or an Appointment of Enduring Guardians.

The only way (other than a Court order) to revoke either:

  • a power of attorney; or
  • an appointment of enduring guardians

is to sign a form of revocation of each and to serve notice on the attorney/guardian so the attorney/guardian whose powers are being revoked is aware of this.

Does divorce affect a Will?

Subject to the contrary intention being expressed in a Will, if you divorce after you make your Will, it only revokes or cancels any gift to a former spouse and their appointment as executor.

Does marriage affect estate planning documents?

Marriage also has an affect on the operation of your Will depending on whether the Will was specially made “in contemplation” of the marriage.

An Appointment of Enduring Guardian is automatically revoked upon marriage even if the person you marry is the person appointed as your enduring guardian.

A Power of Attorney however, is unaffected by marriage, regardless of your nominated attorney/s.

Regular reviews

If any time your circumstances change, such as a birth or death in the family, a marriage, separation or divorce or a material change in finances (for the better or the worse) you should consider whether your estate planning documents require any updates. It may be that no change is necessary, but it at least should be considered.

FURTHER INFORMATION

For further information in relation to estate planning, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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in Estate Planning  by 01 Jun 2023 0 comments

Changing your name

A person may change their name for various reasons, such when they marry, to hide their identity or to adopt a more ‘acceptable’ or popular name.

You can change your name without formally registering a new name. At law, you can change your name through use and becoming known by your new name however, there are often instances which arise where you may be required to provide evidence of change of name. For such reasons, you can register your change of name.

The NSW Registry of Births, Deaths and Marriages (BDM) is responsible for registering all changes of name in New South Wales. Prior to 1996, NSW Land & Property Information Service (formerly the Land Titles Office, and now NSW Land Registry Services) used to register Deed Polls Instrument Evidencing Change of Name.

Any individual over the age of 18 who was born in NSW, or permanent Australian residents living in NSW for at least 3 years, may register a change of name at BDM (unless you are a ‘restricted person’, such as an inmate, parolee, subject to a supervision order or a a forensic/correctional patent etc).

If you are a parent or legal guardian of a child under 18 years who satisfies these criteria, you may apply to register a change of their name. Children over the age of 12 however must consent to a change of name.

In NSW, you can only change your name once in a 12-month period and 3 times in your lifetime.

Most names can be registered, but not all. BDM will not register a name that:

  • is offensive;
  • is too long (exceeding 50 characters);
  • includes numbers and symbols such as 1st, 2nd, 3rd, Jnr, Snr; or
  • could be confused with an official title or rank, such as colonel, premier, judge, saint, queen, prince.

In the case of marriage, if you wish to take your husband’s name, a formal change of name is not always required as a Marriage Certificate will usually suffice as evidence of the change however, in the case of re-marriage, if you continued to use your married name, unless you formally registered your married name with BDM, you must use your name as it appears on your birth certificate when you re-marry.

It is an offence to alter or use an additional or other name with the intention to act fraudulently or with an intention to deceive. Persons found to have done so may be subject to criminal proceedings.

Changing your name is relatively easy, provided you have the proper documentation.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Twitter | Instagram

in Estate Planning / General  by 01 Aug 2021 0 comments

Does marriage, separation or divorce affect my Will?

This blogpost is limited to New South Wales as the laws in each State and Territory differ in relation to these matters.

Marriage

If you get married after you sign a Will, the Will is revoked unless it is specifically stated to have been made in contemplation of that particular marriage taking place.

Marriage will not affect a gift to the person who is your spouse at your date of death or their appointment as your executor.

Entering into a defacto relationship does not have the same impact on a Will as a marriage, but this can give rise to other rights as regards the property of the relationship whilst the parties are alive (and claims in relation to the division of the estate on their deaths).

Divorce

Subject to the contrary intention being expressed in a Will, if you divorce after you make your Will, it only revokes or cancels any gift to a former spouse and their appointment as executor.

It will not however cancel their appointment as trustee of property left on trust for beneficiaries that include children of both you and your former spouse.

Separation

If you don’t update your Will after you separate, your spouse may inherit any property you left to them and they can still be the executor of your estate if named as such in theWill.

The take away

If any time your circumstances change (such as a birth or death in the family, a marriage, separation or divorce or a material change in finances for the better or the worse) you should consider whether your estate planning documents require any updates. It may be that no change is necessary, but it at least should be considered.

FURTHER INFORMATION

For further information in relation to Wills and estate planning, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Twitter | Instagram

in Asset Protection / Dispute Resolution / Estate Planning / General / Probate / Risk management / Trusts  by 01 Nov 2020 0 comments