One question we frequently hear from our clients, is “What happens if…?”.  After working with our clients to prepare their estate planning documents, we discuss the importance of regular reviews of their estate plan.  There are certain life events that not only warrant a review of your estate plan but also may have an automatic effect.

We have prepared the following table that demonstrates what happens in Queensland, New South Wales and Victoria on the occurrence of certain events.

Document Event Effect
Will Marriage Automatic revocation*

*Unless made in contemplation of marriage

  Divorce Your former spouse is treated as having pre-deceased you, save for certain appointments in respect of children in common

*This only occurs on divorce not separation

  Death of a beneficiary Depends if there is a substitute beneficiary
  Death of an executor Appointment fails and substitute executors take their place, if any
  Sale of property gifted Intended beneficiary receives nothing

If the will maker’s attorney has effected the sale of property, the intended recipient of the property may have recourse.

NSW – beneficiary may apply to Supreme Court of New South Wales for the proceeds of the sale of property and Court may make whatever orders it sees fit to ensure no beneficiary receives an unfair or disproportionate advantage or disadvantage.

VIC – beneficiary is entitled to the proceeds of the sale of the property, if they can be traced, if this results in unintended consequences, the Court may rectify this.

QLD – beneficiary may apply to the Supreme Court of Queensland for compensation.

Enduring Power of Attorney Marriage NSW & VIC – Nil

QLD – revoked to the extent it gives power to someone other than your spouse

Divorce NSW & VIC – Nil. Appointments of former spouses must be revoked and served on the former attorney

QLD – revoked to the extent it gives power to the divorced spouse

Your death Ceases to operate
Your attorney’s death/incapacity/bankruptcy Appointment fails and substitute attorneys take their place, if any
Resignation of attorney If you still have capacity, you can make a new appointment, if you have lost capacity, your attorney must seek the approval of NCAT, VCAT and QCAT as appropriate
Appointment of Enduring Guardian (NSW only) Marriage Automatic revocation, unless the appointment was of your now spouse
Divorce Nil – appointments of former spouses must be revoked and served on the former guardian
Your death Ceases to operate
Your guardian’s death/incapacity Appointment fails and substitute guardians take their place, if any
Resignation of guardian If you still have capacity, you can make a new appointment. If you have lost capacity, your guardian must seek the approval of NCAT, VCAT and QCAT as appropriate
Appointment of medical treatment decision maker (VIC only) Marriage Nil
Divorce Nil
Your death Ceases to operate
Your decision maker’s death/incapacity If you have appointed more than one decision maker, the others can act.  If you only have one decision maker and you still have capacity, you can make a new appointment.  If you have lost capacity, an application to VCAT can be made for the appointment of a guardian
Resignation of decision maker If you still have capacity, you can make a new appointment.  If you have lost capacity, an application to VCAT can be made for the appointment of a guardian

 

There are many other life events which can impact your estate plan and it is important to ensure that arrangements you have in place continue to achieve your objectives.

If you are not sure what effect a life event will have on your estate planning, call the team at de Groots on (07) 3221 9744, (02) 9101 7000 or (03) 9975 7321 and one of our lawyers would be pleased to assist you.

By: Kate Donnan, Hannah Willis and Andrew Minahan

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