Both partners are permitted to change their mirror Wills at any time, including after the death of their partner, unless their Wills are considered to be ‘mutual Wills’. A mutual Will is one that contains an agreement that neither spouse/civil partner or unmarried partner shall revoke or change their Wills. These types of Wills have been compared to a contractual agreement. Click here for more information.

When the first spouse/civil partner or unmarried partner dies without having changed his / her mutual Will, a binding obligation arises against the surviving spouse/civil partner or unmarried partner to give effect to the mutually agreed arrangements which were stated in their Wills. If the surviving spouse/civil partner changes his / her Will in these circumstances, a claim may be brought when the surviving spouse/civil partner dies to uphold the first Will.

If there is any possibility that your Will may be considered to be a ‘mutual Will’, get an opinion from a lawyer. A mutual Will may prevent you from changing your Will.  A legal opinion may help to prevent a claim being made against your estate if you later change your Will.

You should do all you can to prevent this happening to you.

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The contributor to a superannuation fund is usually entitled to nominate a third party to receive the benefits due after the contributor’s death. This nomination is often not binding on the trustee of the superannuation fund and is merely a declaration of the contributor’s wishes.

Although the trustee of the superannuation fund has full discretion to distribute the benefit to whomever they feel is most deserving, in practice the trustee will usually honour the nomination.

A trustee will usually consider two (2) key factors in deciding how to distribute the benefit:

• What the contributor wanted and who was nominated by the member to receive the benefit; and
• Who had a financial reliance on the member when he/she died.

Each superannuation fund will have different internal rules as to how a benefit is to be paid out and how such a decision can be contested. If you feel that the trustee of the fund has wrongly distributed the benefit, you should contact the trustee of the fund as soon as possible.

A trustee of a superannuation fund must usually distribute the pension scheme within two (2) years of the date of the deceased’s death.

If no nomination was made by the deceased and no satisfactory beneficiary can be found, the superannuation benefit will usually be given to the deceased’s executor for distribution with the remainder of the estate.

Click here for some information on superannuation and nominations: Click here for more information.

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This will mean that when one joint tenant dies, that person’s share of the property will automatically and immediately pass to the surviving  joint tenant. The property will then be owned solely by the surviving joint tenant who will be permitted to deal with the property in any way he / she wishes.

Nearly all couples own their property and bank accounts as joint tenants. It is important that you check as soon as possible to see how you and your spouse/civil partner own your property.  If you and your spouse/civil partner or unmarried partner own your property as joint tenants, then this property will pass to you outside of the Will when your partner passes away and you will become the sole owner.

You will still be required to transfer the title of the property into your sole name.  You may need a lawyer to help you arrange the transfer.

You and your spouse / civil partner or unmarried partner may also own your property as tenants in common in specified shares. For example, you own a 75% share of the property and your partner a 25% share. In this situation, you will not automatically receive your partner’s share of the property and their share will pass under their Will.  You should consider getting legal advice if this is the case.

You should note however that owning property jointly in New South Wales will not protect this property from a legal claim by another person against the Estate. If that person is successful in their claim, the property may be transferred to them or sold to make financial provision for them.

For information on challenging a Will, click here.

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Your spouse/civil partner or unmarried partner may have appointed you to act as executor. It is the executor’s responsibility to apply for probate, to deal with the estate and to finalise the affairs of the deceased. If your spouse/civil partner or unmarried partner has nominated you to be executor, you can choose to renounce your appointment if you are unwilling or unable to act.

As executor, you have the right to select a solicitor to act on your behalf in obtaining probate and winding up the estate. Some executors prefer to instruct a solicitor to act on their behalf for a number of reasons.  For example, if the estate is complicated or large, or if they simply do not have the time themselves to undertake the tasks required.

If the Will “appoints” a solicitor to act for the estate, the executor is still free to select any solicitor you feel comfortable with: you are not bound by what the Will says when it comes to appointing an executor.

If you have been nominated by your spouse/civil partner or unmarried partner as the executor, this will not disentitle you from receiving any gift under the Will.

If your spouse/civil partner or unmarried partner has nominated another person to act as executor, you should ensure that the original Will and your spouse/civil partner or unmarried partner’s financial information and personal paperwork are provided to the executor. The executor will need these documents to apply for probate and to administer the estate.

For more information about applying for probate, click here for more information.

If your spouse/civil partner or unmarried partner dies without a Will, they are said to have died “intestate”: see intestacy section for information on what will happen under an intestacy.

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You must register the death of your spouse/civil partner or unmarried partner  with the Department of  Births, Deaths and Marriages in the State  in which he / she died. This must usually be done within 14 days  of the date of death however this time may vary from State to State. There are some circumstances in which the registration of a death can be delayed. Click here for more information.

Once the death certificate has been issued, you should contact a funeral director who will make arrangements for the body to be transported to the funeral home. Sometimes, a Will may include details as to how the deceased would like their body disposed of (i.e. burial or cremation) and what type of funeral service they would like. These details are not binding on you. However, you may have discussed your spouse/civil partner or unmarried partner’s wishes before they passed away and will wish to comply.  Click here for more information.

Usually, the funeral costs will be paid for from any money left by your spouse/civil partner or unmarried partner. These costs take priority over other expenses and should be paid first. In most cases, banks and other financial institutions will release funds from the deceased’s bank accounts in order to pay for the funeral costs.

The procedure and requirements in order for this to occur will vary from company to company, so you should contact the deceased’s bank or other financial institution directly to discuss this process. Typically, a bank will release up to $15,000 upon production of the registered death certificate and / or an invoice from a funeral director.

You will need to inform  several organisations of your spouse/civil partner’s death such as the local Council,  the Australian Taxation Office, Centrelink,  and any other organisation from where he / she was receiving benefits. Click here for more information.

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