In NSW, the Succession Act defines who is an “eligible person” to make a claim against another person’s estate after their death. Eligible persons may include:

• A person who was the spouse of the deceased person at the time of the deceased person’s death; and
• A person with whom the deceased person was living in a de facto relationship at the time of the decease person’s death; and
• A former spouse of the deceased person.
• A person with whom the deceased person was living in a close personal relationship at the time of the deceased person‘s death.

If you have separated from your spouse it is important that you consider your interests beyond the immediate action of splitting assets. This is because if one spouse predeceases the other, the former spouse may still be entitled to make a claim on the deceased’s estate as an “eligible person.”

It is recommended that you protect your Estate to ensure that your wishes are followed after your death and your assets are received by the people who you intend them to be left to.

One way to safeguard your position is to, at the time of separation, draft a Will which stipulates your intention as to who your estate goes to. If you have a pre-existing Will then it is recommended that you review who your Executor and beneficiaries are to ensure that you aren’t leaving the balance of your estate to your former partner/spouse.

Another way to achieve this protection is to obtain a Divorce Order. For more information about a Divorce read ‘How do I file for divorce in Australia?’ or please contact one of our experienced family law team.

The next step is for you and your former spouse to enter into a formal agreement known as a “Deed of Release.” A Deed of Release is a legally binding agreement between you and your former spouse wherein you will each mutually release each of your respective individual rights to make a claim under the Succession Act for a provision from the other’s estate, subject to the approval of the Supreme Court.

To obtain the approval of the Supreme Court one party, the Applicant, must file a Summons and Affidavit with the Court. The other party, the Defendant, must then file an Affidavit consenting to the Summons. Draft Orders are also lodged with the Court.

Applications for approval of a Deed of Release are more often than not determined by the Supreme Court “in chambers” meaning that there is no personal appearance required. When consideration an application for approval of a release, the Court will take into account all the circumstances of the case, including whether:

• it is or was, at the time any agreement to make the release was made, to the advantage, financially or otherwise, of the releasing party to make the release, and
• it is or was, at that time, prudent for the releasing party to make the release, and
• the provisions of any agreement to make the release are or were, at that time, fair and reasonable; and
• what if any property settlement was received by each of the parties; and
• the releasing party has taken independent advice in relation to the release and, if so, has given due consideration to that advice.

Once approved has been obtained by the Supreme Court (known as Judgment), the release is binding on the parties in NSW and will prohibit any Application being brought against your Estate. It is important to note that this release is only binding in NSW.

For more information on whether a Deed of Release is appropriate in your circumstances, please contact our family law team.

If you would like assistance with Estate Planning such as ensuring your assets are left to your loved ones, please contact our estate planning team.