What happens to your Will when you get married?

If a Will-maker gets married or enters into a civil union their Will is automatically revoked if it was not clearly stated to have been made in contemplation of that marriage or civil union.

If a Will is made in contemplation of a marriage or a civil union there must be something in the Will that states that the Will is made in the contemplation of the marriage or of the civil union.

Alternatively, the circumstances surrounding the Will’s creation must clearly indicate that it was made in contemplation of marriage or a civil union. To reduce doubt and potential problems later we recommend specifically referring to the contemplated marriage or civil union in the Will.

Entering into a de facto relationship does not revoke a Will (like a marriage or civil union does), but it may affect possible relationship property proceedings if the de facto partner is not contemplated in the Will.

What happens to your Will when you dissolve your marriage or civil union?

A Will remains valid in the case that a marriage or civil union has been officially dissolved.

However, any gifts that were to be given to the Will-maker’s spouse or partner are automatically revoked. Additionally, any provision which appoints a former partner as an executor or trustee of the Will is null and void.

For a dissolution of marriage or civil union to be official, the couple must have been separated for at least two years, and an order dissolving the marriage or civil union must be granted.

The High Court has recently decided in a case before it that a Will made before a marriage began can be regarded as valid, as the Court considered that the facts showed that the Will was made in contemplation of the marriage.

The Will was written by a man in the first year of a de facto relationship with his partner. The couple married a few years later, and remained married for 16 years after the Will was signed.

Under regular circumstances the Will would be revoked. However, it was decided that the man wrote his Will with the contemplation that the couple would progress from a de facto couple to a married couple. This finding of that contemplation meant that the Will was not revoked and was enforceable.

If there is confusion regarding the validity of a Will, or what prudent steps should be taken when making a Will in contemplation of an upcoming marriage or civil union, it is wise to seek advice from a professional with experience in the area.

 

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.

Gianna Menzies and Matthew Binnie