Separated? Why you need to review your Will

Scanlan Carroll Lawyers, Carol Pagès

If you have recently separated, your focus will likely be on what to do about the property you have with your ex partner, and arrangements for your children.
So why do you need to think about your Will?

If you have a Will, it may be that each of you and your ex partner have left everything to each other, and then to your children.

If you are separated, it is important to take the time to review all of your estate planning documents – this includes your Will, your Powers of Attorney, and your Binding Death Benefit Nomination of your superannuation fund.

Each of these documents is explained below:
Your Will – your Will sets out how you would like your assets distributed when you die and who is responsible for carrying out your wishes. You can also include clauses such as your nominated guardian for children under 18, and specific gifts that you would like to make. In your Will you specify who will be your executor. Your executor stands in your shoes when you die, and they will carry out your wishes by calling in your assets and distributing same to your chosen beneficiaries.

Enduring Power of Attorney
– While you are alive, your attorney is able to stand in your shoes and carry out financial transactions on your behalf using the power – this can be buying or selling property on your behalf if you are away on holidays, transacting on your bank account paying your bills for you, and so on. Your nominated attorney can also make personal care decisions for you – such as choosing a care facility if you are unable to look after yourself, or limiting or restricting a person from visiting you if they consider this is not in your interests.
A separate medical decision maker (which can be the same person) will be able to make medical decisions on your behalf, such as consenting to surgery if you are unable to. As the powers are enduring, they continue even if you later suffer an illness or injury which means you are unable to make decisions for yourself.

Binding Death Benefit Nomination (BDBN)
– many people have significant balances in superannuation and also life insurance policies attached to their funds. As part of your estate planning process, we provide you with advice about your BDBN as superannuation is generally considered to be ‘outside’ of your estate and what is covered by your Will. It is important that this valuable asset is passed on to your loved ones in the way that you intended.

Why is this important?
Separation does not trigger the end of your existing Will, Powers of Attorney or BDBN. Many people are surprised to learn that divorce does not invalidate your Will. Divorce revokes a gift to your former spouse or appointment as your executor, and remarriage can invalidate your Will save for references made to your current spouse.

What if I don’t have a Will?
If you don’t have a Will, your assets will be passed on to your relatives according to the rules of intestacy. The rules in Victoria are that if you die, your estate goes to:
Your spouse or domestic partner if you have no children;
Your spouse or domestic partner, if you have children with that partner;
If you have children to a previous relationship, your spouse will receive a statutory legacy (currently $480,700), your personal possessions, and 50% of the balance of your estate. Your children will equally share the remaining 50% of your estate.

Case study – who inherits?
Alex separated from Danielle three years ago. They were married however had no children. They were able to resolve their family law property division fairly amicably, and finalized their family law case with Consent Orders dividing their property.
Alex and Danielle prepared their Wills when they were first married 10 years ago, each leaving their estate to the other.
Alex has re-partnered with Mary, and they have been together for 20 months.
Alex and Danielle haven’t yet filed for divorce as they have not gotten around to it yet. Alex has the forms on the kitchen table to sign.
Alex tragically dies before signing his divorce form.
Who do Alex’s assets go to………..?
Depending on a number of factors – it’s Danielle – his former wife.
The gifts to Danielle in Alex’s Will are not revoked as they are not divorced.
If Alex owned property such as a house with Mary, and the house was in joint names – the house would be outside of Alex’s estate and pass straight to Mary.
What if Alex didn’t have a Will?
Based on the length of the relationship with Mary (along with several other factors which would need to be taken into account under the Family Law Act 1975 (Cth)), Mary is not likely to be considered a spouse.
Danielle is still Alex’s legal spouse, as they are not divorced, so Danielle receives Alex’s estate.

Summary
Mary may have grounds to make a claim in either scenario, but this can be a long and expensive legal process which no one wants to go through after the loss of a loved one.
The above example shows that how an asset passes on after death can depend on a number of factors. To ensure that your wishes are as you intended, it is important to obtain advice in relation to your family law and estate planning matters.
This is important at separation, and the time following separation – for example, when you re-partner, it is worth considering the impact of your new relationship and property ownership upon your children, and your new partner.

Let’s talk about women and retirement

Why is retirement different for women? Women retire with about 60% of the superannuation funds that men have. They live 5 years longer and they are far more reliant on the aged pension. On the plus side – women are more likely to retain their friendship networks, more likely to be the principal carer for their partner, their parents and their grandchildren, as well being more likely to volunteer to help others.
Listen to my wide-ranging discussion with community radio 2RDJ broadcaster, Neil Lithgow about women and retirement. Listen here:

Be part of this research project

By simply spending 30 minutes of your time answering these questions about yourself, you can make a contribution to research about ageing and Australian women.

What is AgeHAPPY?

The Healthy Ageing Project Population Youth-senior (AgeHAPPY) is an online heath survey for Australians. The Healthy Ageing Project (HAP) mission is to improve the understanding of health across a lifespan to promote healthy ageing and prevent disease.

This round of the survey commenced in 2020. It started with a pilot study called HAP. Data on self-reported health, lifestyle, mood, and vascular risk factors is being collected from male and female participants aged 18 years and over. AgeHAPPY is a continuation of the Women’s Healthy Ageing Project (WHAP).

WHAP commenced in 1990 as a study examining the health of Australian women from midlife (then aged 45-55 years) before the menopausal transition and into ageing. The study has almost 30 years of data on mood, dietary intake, risky behaviours, physical activity and social connectedness among other factors. WHAP continues to follow up these women, who are now all aged over 70 years. The children of the original participants have now joined the study as of 2021 commencing the WHAP generations study.

AgeHAPPY is a study into the lifelong effects of lifestyle and habits on health and the progression of ageing. Everyone over 18 years of age can participate in the online health questionnaire. This research ultimately contributes to promoting healthy ageing in Australia and to improve the wellbeing of all Australians.

Chronic disease is the largest cause of death and disability in Australian society and throughout the western world. The information collected will enable greater understanding of the impact of social and behavioural factors on health and influence policies toward better prevention and early detection of health issues, including Parkinson’s and Alzheimer’s disease.

Most studies on “ageing” are usually limited to the elderly. HAP defines ageing as a phenomenon that occurs continuously throughout all stages of life – and presents its health challenges at all ages. Many studies show that indicators for chronic disease occur years before onset.

Through this online health survey, HAP can collect valuable demographic, clinical, behavioural and lifestyle data which allows them to analyse the impact of factors on health and ageing at every age.

Get involved in the AgeHAPPY study

The first section of the study is an online questionnaire covering areas such as demographic information, general health history, family health history, mood, quality of life, physical activity, sleep, diet, alcohol intake, smoking, physical function, social relationships, and negative life events.

The second section is a cognitive component which tests thinking skills, a bit like a brain game. A participant will be invited to complete the online cognitive testing from the Healthy Brain Initiative – Brain Health Registry (HBI-BHR). The Brain Health Registry is a web-based study that enables researchers to efficiently identify, assess and monitor the brain changes associated with the progression of neurodegenerative diseases and brain ageing more efficiently.

In 12 months’ time, HAP will contact you to complete a follow-up online questionnaire.

To participate, please follow the link:
https://medicine.unimelb.edu.au/research-groups/medicine-and-radiology-research/royal-melbourne-hospital/healthy-ageing-program/healthy-ageing-project

Australia’s health by socio-economic status

However you describe it, being poor, disadvantaged, or living in a low socioeconomic area is more likely to make you more susceptible to preventable chronic diseases such as heart disease, arthritis and diabetes.

Australia’s Health Tracker by Socioeconomic Status 2021 reports on the health status of Australians based on their socioeconomic standard which the study has found has a major impact on people’s health. Families and individuals with limited resources not only have more chronic disease, they are at greater risk of dying prematurely as a result of chronic health conditions. People living with mental ill-health are less likely to participate in employment, which in itself, is associated with an improvement in general mental health levels.

The ten million people living in the 40% of communities with lower and lowest socioeconomic status have much higher rates of preventable cardiovascular diseases, cancer, diabetes or chronic respiratory diseases than others in the population. These communities also have the highest rates of suicide throughout the nation.

Risk factors that are likely to contribute to this higher rate of illness and premature death include:
• Physical inactivity
• Lifetime alcohol consumption
• Daily tobacco use
• Unemployment as a result of mental health issues.

These health disparities within the Australian population are persistent despite considerable policy reform and efforts to improve services in recent decades. The targets for a healthier Australia were developed by the Australian Health Policy Collaboration, a national network of leading health experts and organisations. The Collaboration has worked with the support of the Mitchell Institute, Victoria University since 2014 to influence public and policy awareness and action to reduce high rates of preventable chronic disease in the Australian population.

The report sets health targets for medical conditions such as:
Obesity – Obesity is a risk factor for cardiovascular disease, high blood pressure, type 2 diabetes, asthma, back pain and some cancers.
High cholesterol – High levels of low-density lipoprotein cholesterol are a risk factor for heart disease. National data from 2011-12 is the most recent available data and indicated that close to one-third of all socioeconomic groups were estimated to have high cholesterol levels.
High blood pressure – Rates of reported high blood pressure are relatively consistent across socioeconomic groups. High blood pressure is often caused by poor diet, physical inactivity, obesity and excessive alcohol consumption. It is a risk factor for chronic conditions including stroke, heart diseases, and chronic kidney disease
Diabetes – Hospitalisations and deaths related to diabetes are, respectively, 2 and 2.3 times as high in the lowest socioeconomic communities compared to the highest.

Australia’s Health Tracker by Socioeconomic Status 2021 report, The Mitchell Institute at Victoria University. Australia’s Health Tracker by Socioeconomic Status 2021 report

Telehealth use increases during pandemic

In the wake of the COVID-19 pandemic there has been a rapid take up of telehealth. Telehealth can according be described as the delivery of any health service, remotely, usually over the phone or via video call. A service could include an online counselling session, a phone call with a general practitioner, or a video chat with a physiotherapist or allied health professional.

According to the Australian Bureau of Statistics, one in six adults aged 18 years and over (17%) used a telehealth service during early-April to early-May 2020, when the pandemic restrictions on social distancing were at their strictest.

Research by the Global Centre for Modern Ageing found that older Australians liked telehealth for its convenience, reduced travel and ability to be conducted at home. Improvements they suggested include making telehealth more available, improving tech, and providing more information around the end-to-end process, including scripts, follow-ups and referrals.

Loneliness was the most widely reported source of personal stress for Australians during April, according to the third ABS Household Impacts of COVID-19 Survey.

“Around one in five people (19 per cent) also reported that they were experiencing difficulties maintaining a healthy lifestyle, which was more of a problem for those aged 18 to 64 years (22 per cent) than those aged 65 years and over (9 per cent),” added Ms Marquardt, ABS Program Manager for Household Surveys.

Before the coronavirus pandemic, telehealth was most commonly used to make it easier for people in remote communities to access expert healthcare. However since the coronavirus pandemic, government policy has encouraged telehealth availability with the added benefit that the service can be bulk-billed.

Global Centre for Modern Ageing research, https://static1.squarespace.com/static/5ae17ed32971146319f879ca/t/5eeebc167250ac3a2ce07f1d/1592704027892/Telehealth+Here+to+Stay+GCMA+research+report.pdf

Isolate and thrive

By Alice Mantel

In this uncertain period, we may have increased the physical distance between each other but we can still be socially connected. It might just require more motivation (and self-discipline to use the words of one very important person).

Here are my suggestions about how to make the most of this enforced retreat from the busy world:

Daily rituals – find a special way to welcome the morning, or the approaching night, perhaps just by paying attention in silent stillness.

Enjoy the solitude – doing things that you like, You could read a book (including downloading a digital version from your library), listen to podcasts, play loud music, take up an instrument you have ignored for a while, flip through photo albums or dance while no one is watching. You could even write your memoirs.

Connect with others – call friends and contacts, by phone or with video calls, or celebrate your special days by hosting an online party. Do a jigsaw puzzle with a family member. Call Lifeline on 13 11 14 if you don’t feel in control of your mental stress or anxiety.

Share – your recipes, your patterns, your ideas – through a curated social media diet or a blog your own thoughts. Use digital media to stay informed.

Create something new – take up painting, sewing, pottery making, knitting again. Find a live streamed class to join. Cook new meals or cakes that you have always wanted to try.

Develop your sense of purpose – reach out and support your neighbours, your school, or disadvantaged groups by volunteering, donating money or following their media posts.

Revise and re-evaluate the obvious – what is in your cupboards, your bookshelves, your kitchen pantry, or your bottom drawers?

Stay active – participate in online classes like yoga or dance classes, walk/run in the fresh air in local parks, breathe deeply on your balcony, set up a home gym using items found around your home, or take up golf or tennis.

Care for yourself – catch up on some sleep, rationalise your old clothes, give yourself an organic facial, throw out old makeup, dress to impress yourself.

Go gardening – pruning, weeding, planting, reorganising your pot plants, buying more plants, mulch and fertilise.

Avoid– non-essential online shopping, too much couch time watching streamed movie marathons, and drinking more alcohol to pass the time.

Six minutes interview

This story appeared in the March 2020 issue of the NSW Law Society Journal:

BY AMY DALE – FEB 27, 2020

Alice Mantel is an experienced lawyer and adviser on the challenges that many women encounter during retirement. She talks about family law, homelessness, and why just planning one big overseas trip won’t cut it for the final third of your life.

What experiences as a lawyer shaped your decision to advise on planning for retirement?
I spent around 10 years practising family and then elder law. In family law particularly, I was surprised and then concerned about how little many of my clients knew about their own personal financial circumstances. Often, they did not know if their name was on the title of the property, or how much was owed on the mortgage or credit cards. Again, when acting for older clients, often they left making their wills or power of attorney until very late, when there was pressure from their children, which, as you can appreciate, is a very difficult situation for any lawyer. It brought home to me that women need to be prepared much sooner for the unexpected.

What inspired you to write your book, Every Woman’s Guide to Retirement?
I started writing this book before I retired. I was initially doing research to answer my own questions. Years ago, when placing my mother into a nursing home, I realised how difficult it was to find any sensible information to assist me. More recently, I wanted some guidance when I was thinking about closing my practice. After a while, I decided that most books or articles did not seem very relevant to me. They were often very friendly but aimed at chaps who were fairly well off or aimed at women who presumably intended to spend the last third of their life on continual holidays. My research gradually grew into a book that is far more extensive than I had ever contemplated and includes mundane topics like accessing your pension as well as more interesting options such as lifelong learning or starting a new relationship.

What issues specifically apply to women? Bulk of carer responsibilities, less superannuation, longer life span?
I see retirement as very different for women than men. Generally, women are the main carers for their parents, children, partners and grandchildren. At the same time, they come into retirement with significantly less financial resources but live on average five years longer. If they do not have enough resources, those last years are going to be close to living in poverty. It can be a very grim prospect if a woman’s health begins to suffer and there is not always the certainty that your children will be there to look after you.

Women aged 55 and above are the fastest-growing cohort at risk of homelessness. How can we do more to ensure financial security?
It is no surprise to me that older women are at risk of homelessness. It can begin if they lose their home in a divorce settlement and cannot recover financially, but also if they are unable to find work and remain unemployed, either as a result of their own or their children’s health issues. When super funds talk about having a modest retirement, or a comfortable retirement, there is always an unspoken assumption that the retiree owns their own home. That’s ridiculous and increasingly unlikely as recent figures have demonstrated. We need to make a secure home a realistic possibility for everyone.

What about social planning for retirement? How can people prepare themselves to leave the workforce and feel at ease that a happy and fulfilling future is still ahead of them?
Most women retiring today can expect to have another 20 years of relatively good health, so it simply isn’t enough to plan your one big overseas trip and think that’s all there is to it. For working women, one of the major issues around retirement is the loss of their work identity, the loss of income and the social connectedness that professional life brings. We need to plan at least a year ahead of retirement about how we can use our skills and experience in the non-employment sphere – and let me assure you, that is a very large sphere. There are so many not-for-profit agencies looking for directors on their boards or volunteers for their operations. Not having to follow a work routine means you can finally pursue your real passion – whether it is art, woodwork, or caring for your grandkids and even if it might take a little time to find what that is, it will give real meaning to the legacy you leave.