Separating? Why You Need to Check your Will (& a top tip from us !)

Amanda looked at me with surprise. “So, let me check I’ve got this right”, she slowly said “As well as having to negotiate a relationship property agreement with Sam, I also have to update my will and enduring powers of attorney and change the ownership of our home? There’s so much to this separation!”.

We can well understand Amanda’s response. Navigating the emotional and practical challenges of a separation is never easy. When you are juggling the emotions of a separation and negotiating your parenting and financial matters with an ex, it can be tempting to put off looking at your will to “another day”.  But attending to your will, powers of attorney and how the ownership of your home is recorded are important aspects of comprehensively getting things sorted in order to avoid future problems for you and those you care about most. Here’s why -

Does Your Will Still Reflect Your Wishes?

When you separate, your priorities often change. You may no longer want your ex to inherit your estate, manage your assets, make decisions about your funeral and manage the distribution of your estate after you pass away.  

Yet, unless you update your will, the law may still recognise your ex as your main beneficiary or executor. That can mean:

• Your property passing to them against your current wishes.

• Family members or new partners being unintentionally left out.

• Your ex making decisions about your funeral and what is to happen with your remains.

• Disputes and costly litigation for the people you leave behind.

  
  

If you were in a de facto relationship, separating from your partner does not change your will.

If you were married, your will remains unchanged until you obtain a dissolution order from the Court (a divorce). When your marriage is dissolved, your will remains in place but your former spouse can no longer be your executor or receive any gifts under your will. In all other respects, your will remains in place. It’s important to remember though that you can only apply for a divorce once you have been separated for two years so there is a whole period of time between separating and divorce where your ex can inherit and be an executor of your will unless you update it! Furthermore, after a divorce order is made, your will could become meaningless once your ex is removed from it if alternate arrangements weren't included in it.

In Amanda’s case, she had named Sam as the executor of her estate and had left her property to him in the will she made during happier times. She explained she now wanted her children to benefit from her property and for her sister to be her executor. By updating her will promptly, she avoided the risks above and ensured her wishes were accurately reflected and carried through.

Do you Want Your Ex Making Decisions about your Care or your Finances if You’re Unable to?

Amanda had been prudent during her marriage with Sam and had completed Enduring Powers of Attorney in which she named Sam as the person who could make decisions about her care and welfare and also her finances if she became mentally unable to make decisions for herself. When we reminded her of this, she was understandably unhappy about the prospect of Sam making decisions for her and managing her money and property.

The solution? To complete new Enduring Powers of Attorney.

Do You Want Your Ex to Inherit Your Entire Home? A Top Tip!

Like many New Zealand couples, Amanda and Sam own their home together as “joint tenants”. This means that both their names are recorded on the Certificate of Title in such a way that if one of them dies, the other automatically owns the whole property. We explained to Amanda that if she died, Sam would own the home entirely. It wouldn’t matter what Amanda’s updated will said because the home would be Sam’s and no part of it would go into her estate unless her executors successfully brought relationship property proceedings against Sam - a costly and stressful exercise she didn’t want them to have to go through.

This is why one of our top tips for separating couples is to sever their joint tenancy. This can be done simply and cost effectively and it will mean the ownership of the home is changed so that you each own a half share of the property. Your share then forms part of your estate when you die so that it can be passed to whoever you name as your beneficiaries in your updated will. Better still – you can do this without needing your ex to agree to it. Much quicker and cost effective than leaving your estate to do battle with your ex!  

How do You Want Decisions Made for Your Children?

If you die, the surviving other parent of any dependent children you have will be their sole remaining guardian, able to make decisions alone about their wellbeing and welfare.

Although Amanda imagined her and Sam's children would be in Sam’s care if she died and knew they would be well cared for by Sam, Amanda still wanted to ensure her family weren’t potentially left out in the cold when it came to important decisions about them.

By updating your will, you can name a testamentary guardian for your children – someone who, on your death, becomes responsible for making decisions together with your children’s surviving parent or other guardians, about important matters affecting the children’s welfare.

For Amanda, she named her sister as the testamentary guardian, knowing her sister would be able to cooperate with Sam about the children and would ensure Amanda’s wishes and views would be taken into account when decisions were made about the children’s future wellbeing.

Avoiding Costly and Stressful Disputes

Few things create more stress for grieving families than unclear or outdated wills. Litigation around relationship property and wills and estates can be expensive, slow, and emotionally damaging. A clear, up-to-date will and properly structured property ownership are the best way to prevent this. They make your wishes clear, reduce opportunities for challenge, and protect your loved ones from unnecessary conflict.

The Next Steps

If you and your spouse have separated, don’t wait to update your will and address your property ownership. Speak with us today to:

• Review and, if need be, update your will and enduring powers of attorney.

• Sever the joint tenancy on your home, if appropriate.

• Put in place arrangements that reflect your current priorities and protect your family.

Taking these steps now ensures that your wishes are respected and your loved ones are looked after – no matter what the future holds.

Book a free, 15 minute chat with one of our lawyers easily online here.

Names and any identifying information have been altered to protect the privacy of individuals. The information in this blog is current at 1 August 2025. The information in this blog is general, educative information only. As such, it should not be relied on in place of getting your own legal advice.