Jeff and Suzie had been living together for ten years and had a son together in 2019.

Once their child was born they decided to get Wills to make sure everything was in order in case anything happened to the one or both of them. In their Wills they left everything to each other first and said that on the death of the survivor of them, everything was to go to their son, with Suzie’s sister as the executor of the estate and the guardian of their son.

Two years later, after a health scare for Jeff, Jeff and Suzie decided they wanted to get married and did so.

Unfortunately, one year after their marriage Suzie passed away in an accident. Jeff went to his lawyer to get Suzie’s Will and to start gathering the investments in Suzie’s name only (Suzie had received a large inheritance from her mother which she had in a term deposit in her sole name).

When Jeff mentioned to his lawyer how he and Suzie had only been married a year ago, the lawyer advised Jeff that his and Suzie’s Wills had been revoked by their marriage, so they were no longer valid. Jeff would not be receiving her whole estate as a portion would go directly to Jeff and Suzie’s son.

Jeff was shocked as he had no idea that marriage invalidated a Will.

Has your relationship status changed?

Did you make a Will before your relationship status changed? If so, there were some legal implications that occurred at the same time as your relationship status changed.

Married or entered into a civil union?

Any Will you made before you got married or entered into a civil union was revoked when you got married or entered into a civil union – it is as if you never made that Will (unless it stated in the Will itself that it was made in contemplation of your marriage or civil union or the circumstances existing when it was made show clearly it was made in contemplation of the particular marriage or civil union).

If you did not make a new Will after your marriage or civil union then what your partner will get when you pass away will depend on what other relatives you have at the time.

For example, if you died and left:

1. A partner and children (whether they are children you had with that partner or not) – your personal chattels and the first $155,000 of your estate goes to your partner, with everything over that being divided 1/3 to your partner and 2/3 to your children.
2. A partner and no children but you have parent(s) that have survived you – your personal chattels and the first $155,000 of your estate goes to your partner, with everything over that being divided 2/3 to your partner and 1/3 to your parent(s).
3. Partner, no children and no parent(s)– your personal chattels and all of your estate will go to your partner.

If you do not want your estate to be divided as detailed above it’s essential that you make a new Will.

Divorced?

If you have legally divorced your spouse, then any provision to them in your Will is void – it is as if they have predeceased you (unless your Will states it was made in contemplation of your parting). 

This does not mean the whole Will is invalid, however if they were your executor and final beneficiary, it may end up having that effect.

Beware – for it to be a legal “divorce” in New Zealand you will need to have received a Separation Order or Dissolution Order from the Family Court, and there are criteria for you to meet to get an Order.

For example, you cannot apply for a Dissolution order until you and your spouse or civil union partner have been living apart for at least two years.

You should get your Will updated as soon as possible if you do not want any provision relating to your spouse to apply after you have decided to part ways (or if you still want them to inherit your estate after you die and your Will is not made in contemplation of a future legal divorce).

De facto partners

Entering into, or getting out of, a de facto relationship has no effect on the contents or legal status of your Will. You should however update your Will as required anyway if your relationship status changes as you will likely not normally want to include an ex-partner in your Will.

If your current de facto partner is not in your Will you may want to update it – otherwise they may be looking to make a claim against your estate if you unexpectedly pass away more here (and that will not be a pleasant situation for your loved ones).

It pays to take advice from a legal professional when considering making or changing a Will, as there are many difficult aspects involved in this area of the law that can trip up. Many beyond just the “young players”!

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

 

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.