Highlight: 'Severing the tenancy' after separation

A family law expert emphasises the importance of having a legal adviser on board in relationship breakdowns

Highlight: 'Severing the tenancy' after separation

Ending a marriage doesn’t instantly nullify a will, so couples who are separating or getting divorced should ensure that they get comprehensive legal advice to protect their interests.

“When divorce (formally known as dissolution of marriage or civil union) or separation occurs, a will is not automatically void,” Holland Beckett partner Leesa Speed explained to NZ Lawyer, citing section 19 of the Wills Act 2007.

“The will is read as if the surviving divorced spouse or civil union partner had died before the deceased divorced spouse or civil union partner even though they are still alive (with limited exception where disposition is in favour of children).”

Thus, a will stays valid in the event of divorce, just minus gifts or executor appointments that would have gone to the former spouse. Assets like jointly owned property that are not included in a will remain on the table.

“It is very important to note that if property is owned as joint tenants (rather than tenants in common in defined shares, for example, half shares) then the property passes directly to the survivor by way of ‘survivorship’ and the deceased person’s interest in it does not form part of their estate,” Speed said.

“For this reason, it is often advisable to take legal advice about ‘severing the tenancy’ following separation, particularly if there is likely to be a protracted dispute about relationship property division, to avoid the risk of this happening if one spouse/partner dies before the relationship property division has been resolved.”

Moreover, an official separation order must have been obtained under the Family Proceedings Act for a will to be impacted.

“If parties have separated but there has been no legal dissolution of the marriage or civil union, then the provisions of the will that relate to the spouse or civil union partner are not automatically void. The provisions of the will remain effective,” Speed said.

 

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