Legal Separation and Your Will
What you don't know could cost you.
By Christopher Green - Green Way Legal www.greenlaw.com
We frequently advise newly minted couples concerning wills and powers of attorney, since many conscientious newly-weds are keen to start off their married life by getting their affairs in order. Typically, they walk out of the office with wills that appoint each other as executor, and give everything to the other. Those wills get tucked away in a safety deposit box and forgotten about, a potential time bomb for the roughly 50% of couples who subsequently split.
The problem is that under the Wills Act, the simple fact of separation does not affect the terms of your will, so your separated spouse could still be appointed as executor, and could still inherit your entire estate. Only a court order, made during your lifetime, dissolving the marriage, will keep your estate out of the clutches of your ex. Since most divorce proceeding are not initiated until the parties have lived separate and apart for a full year, and many couple never bother with the expense of applying for a divorce, or have no need to, since they were living in a common law relationship, there is a significant risk of an inappropriate inheritance occurring.
The new Wills, Estate and Succession Act, which is slated to come into effect shortly, is expected to provide that gifts made to a spouse from whom you have been separated for more than a year no longer count, but that still leaves a lot of scope for things to go wrong.
Perhaps more worrisome is the fact that in many cases the companion piece to a will is a power of attorney, a financial signing authority which allows another person to sign legal and financial documents on your behalf. Although spouses are the most commonly appointed attorneys, no provision is made anywhere for the revocation of a power of attorney in the event of separation or divorce. Because there is no central government registry where Powers of Attorney (P of A), or changes to them can be posted, P of A's can be difficult to effectively revoke. This leaves completely open the prospect of a disgruntled spouse in possession of an originally signed P of A draining a bank or investment account or transferring real estate.
Considering that your will may also contain the appointment of a guardian for your infant children and may make an "if all else fails" gift to secondary members of your, or your ex- spouses family, you can see the importance of reviewing and re-writing your will promptly, in the event of a marital break-up.
