Associate, Lynn Carrucan, discusses this important topic.
A Will is an essential tool that ensures that your loved ones are looked after and that your wishes are respected. Entering a new relationship or getting married is an exciting time, but it is also an important time to ensure that your Will is updated, and expert advice is sought to ensure that your assets are distributed according to your wishes. Many Australians are not aware the effect that marriage or the ending of a marriage has on their Will.
Getting married and Wills made in contemplation of marriage
Did you know that getting married will immediately revoke any previous Will that you have? This can lead to unintended consequences for your spouse and loved ones. Reviewing your Will following your marriage is crucial in ensuring that you have a valid Will and that it is up to date following your change in circumstances. It is also a starting point for you and your new spouse to have an important conversation about your intentions if you were to pass away.
If you already have a Will, it is important to check that your Will includes a contemplation of marriage clause. A Will made in contemplation of marriage is designed to address the changes in one's personal and financial circumstances due to an impending marriage. The clause will reflect this upcoming major change in circumstances. The reality is, most Wills do not contain this clause unless that marriage is contemplated at the time that the Will is prepared, and it has been prepared by lawyers specialised in this area.
In saying that, even if a Will is made in contemplation of marriage, it is prudent to review and possibly update your Will after the marriage takes place.
Second marriages and your Will
Failing to prepare a Will following your first marriage and having a large portion of your Estate go to your spouse may not appear to be an issue for some people. A person entering a second marriage may be more at risk if they do not review or prepare a Will following their second marriage, particularly if there are children from a previous marriage. It is crucial to seek advice on how to structure your Will, to ensure that your loved ones are protected and provided for in the event of your demise.
Intestate Estates
Your Will should always reflect significant life changes, but it is well known that marriage and divorce are two of the biggest reasons that loved ones find themselves dealing with an intestate estate. This is because the deceased failed to obtain proper advice on their Will following these significant life changes. In Australia, if you die without updating your Will after marriage or divorce, your estate could be distributed in accordance with the intestacy laws of your state or territory.
Unintended intestate estate scenarios
Here are some scenarios where the Deceased's loved ones found themselves dealing with an intestate Estate:
- The testator prepared a very detailed Will with numerous specific gifts to his adult children from a previous marriage, in particular specific instructions as to how his large share portfolio is to be distributed between his children. He also makes provision for his de facto partner. The Will is fair and unlikely to cause any contention. He whimsically decides to marry his long-term de facto partner and fails to seek advice regarding the effect of his marriage on his Will. He suddenly dies and the children are shocked to find out that his Will is no longer valid and that their father has died intestate, and that his Estate will be distributed in accordance with the laws of intestacy.
- A testator prepares a Will and divorces his wife many years later. He takes no steps to review his Will, and presumes that he has a valid Will. He suddenly dies, and his children are devastated to learn that the Will that they presumed was valid has been revoked by his divorce. This leads to devastation amongst the family as the revoked Will contains specific gifts and wishes of the Deceased. They are advised that their father has died intestate and his Estate will be distributed in accordance with the laws of intestacy.
Life changes that should prompt you to prepare or review your Will
Reviewing your Will is just as important as creating a new one. Below are some of the major life changes that should prompt you into preparing a Will, or reviewing your Will:
- Marriage
- Divorce
- Separation
- Starting a family
- Buying a new home or if your assets change
- When you retire; and
- If you become ill
Ending a Marriage and your Will
The ending of a marriage whether through separation or divorce is also an important time where you should seek experienced legal advice in relation to your Will. Separating from your spouse has no legal impact on your Will, whereas, divorce will automatically void your Will. If you were to pass away while separated but still legally married to your spouse, and you have not made any amendments to your Will post separation, your Will remains valid and your spouse will effectively inherit your Estate in accordance with the terms of the Will. If you pass away without having ever made a Will and you have separated from your spouse prior to your passing, it is likely that your spouse could also inherit your Estate under the laws of intestacy. The period of separation prior to divorce is possibly the most important time where you should prepare a new Will or review your Will to reflect your change in circumstances.
Experienced Advice
Whether you are planning to get married, or are starting the court process to end your marriage, it is paramount that you speak with a lawyer who is specialised in Wills and Estate planning. It is vital to ensure that your Will is up to date following marriage or the ending of a marriage, if you want to ensure that your assets are distributed in accordance with your wishes. The process of preparing a Will does not need to be complex, time consuming or costly. Wills are important, they give you the chance to control how your assets are distributed and the opportunity to appoint the right person to administer your Estate.
At HHG Legal Group, our specialised team of Wills and Estates lawyers can assist you in preparing a bespoke Will that is tailored to your circumstances, taking into consideration your assets, family dynamics, intentions to marry, separate or an impending divorce.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
