5th October

Getting hitched? Update your will

Getting married or entering into a civil union is an exciting and busy time. While contracting out agreements may be contemplated, discussed and entered into people don’t know that the consequence of such union is the revocation of their pre-existing Will.

The law assumes that as a result of this fundamental step you would intend to change your testamentary regime and assumes that if you were to die and had not yet updated your Will that such will does not reflect your latest intentions (s18 of Wills Act).

Read on to learn about what would happen if your Will was revoked by way of marriage and what you can do about it...The result if your Will was revoked by way of marriage and you died before making a new Will would be that your property would be disposed of intestate according to the rules of the Administration Act. For example, if you die with a spouse and children, your personal chattels will go to your surviving spouse. Personal chattels are broadly defined and include vehicles, boats, aircrafts, furniture, ornaments, pictures, musical instruments alcohol subject to relevant securities and hire purchase agreements. Then, the prescribed amount (currently $155,000) will go to your spouse and the balance will be held in trust, with a third allocated to your surviving spouse and two thirds to your children.

If you have minor children or children from a previous relationship, or wish to deal with any family heirlooms or sentimental property, or wish to deal with any of your property other than as regulated by intestate succession law, we recommend you prepare a new will if you’re getting married, or entering into a civil union or have gotten married or entered into a civil union and haven’t made a new will since then.

There is an exception to the abovementioned assumption, if your will was prepared in “contemplation of marriage” your will remains valid and will not be revoked when you get married. It might not be enough that when you made the Will you were privately considering marriage or even that you were engaged. To be safe the Will should expressly state it is being made "in contemplation of your marriage". Please note that some wills already contain this wording expressly, but many don’t. Also, if you were not in a relationship with your current or impending spouse at the time or clearly weren’t contemplating a marriage or civil union at the time of your Will it may be subject to challenge either way and you don’t want to leave your family in a state of dispute on your death.

If you are about to or have gotten married or entered into a civil union without concluding a new Will, we can assist you depending on your pre-nuptial/post-nuptial circumstances to ensure your intentions are clearly recorded.