The Importance of Drafting Your Will Upon Marriage
Associate, Emma Catterall discusses the legal considerations and best practices of drafting a Will upon marriage.
Legal Framework in Western Australia
In Western Australia, the laws governing Wills and estates are outlined in the Wills Act 1970 (WA) and the Administration Act 1903 (WA). These laws provide a framework for how your assets will be distributed upon your death. Without a valid Will, your estate will be subject to intestacy laws, which may not align with your wishes. Pursuant to the Wills Act 1970 (WA) your Will is revoked by marriage or divorce unless this was contemplated in the Will by inclusion of an appropriate contemplation clause. If you have a Will that does not include a contemplation clause or does not include an adequate contemplation clause your Will will be revoked upon marriage and your estate will be distributed in accordance with the Administration Act 1903 (WA).
Why Draft a Will Upon Marriage
- Protecting Your Spouse: A Will ensures that your spouse is adequately provided for in the event of your death. Without a Will, your spouse may not automatically inherit all of your assets, especially if you have children or other dependents.
- Guardianship of Children: If you have or plan to have children, a Will allows you to appoint a guardian to care for them in the event of your death. This is a critical step in ensuring their future well-being.
- Asset Distribution: Clearly outlining how you want your assets distributed can prevent disputes among family members. This is particularly important in blended families where there may be children from previous relationships.
- Minimising Legal Complications: A well-drafted Will can simplify the estate administration process, reducing the time and expense involved in applying for Probate and administering your estate.
- Reflecting Life Changes: Marriage often brings significant changes to your financial situation, such as purchasing a home or combining assets. Updating or drafting a Will ensures that these changes are reflected in your estate planning.
Other Estate Planning Documents
Upon marriage, it might be appropriate to consider revoking Enduring Powers of Attorney (EPA) and Enduring Powers of Guardianship (EPG) that no longer hold appropriate appointments. For example, if your EPA or EPG appoints a previous partner or elderly parents, you may wish to revoke these documents in favour of appointing your spouse. If you prepared a previous document when your children were still minors, if they have now reached majority, you may wish to appoint them to manage your financial affairs or health decisions upon incapacity. We note that unlike Wills, EPAs and EPGs are not revoked by marriage or divorce, and it is therefore possible to have valid documents appointing ex-spouses.
Engaging a Lawyer
While DIY will kits are available, consulting a lawyer ensures that your Will is legally sound and tailored to your specific circumstances. DIY Wills, when completed incorrectly, can result in partial intestacies and significant expense correcting mistakes made by the Willmaker or witnesses. By engaging a lawyer you can ensure your circumstances are considered and an appropriate Will is drafted for your individual circumstances.
Considerations Prior to Engaging a Lawyer
Lawyers will ask a series of questions when taking instructions for preparation of a Will, and we recommend you consider the following prior to an initial appointment:
- Assets: Make a comprehensive list of your assets, including property, bank accounts, investments, and personal belongings. Although these assets are not often listed specifically in your Will it will allow the lawyer to provide advice on what will happen to the assets on your death and will allow them to ensure the Will is drafted appropriately to deal with your particular assets. If you have trusts an estates lawyer can also advise on appropriate variations or updates following changes in your circumstances.
- Beneficiaries: Decide who should benefit from your estate upon your death. This often includes your spouse, children, other family members, friends, or charities. It is also important to consider how your estate should be gifted upon the death of any/all of the chosen beneficiaries.
- Executors: Choose a trusted person/s to carry out the instructions in your Will. This person will be responsible for managing your estate and ensuring your wishes are fulfilled. It is important to appoint someone capable of acting in this role and to consider substitute appointments in the event the institute executor is unwilling or unable to act.
- Guardians: If you have minor children (or intend to start a family) appoint a trusted person/s to act as guardian upon your death. We note it is possible for your executor and guardian to be the same person and confirm this person can also be a beneficiary under your Will.
Further Considerations for Blended Families
If you have a blended family, other considerations to make before the appointment include:
- Gifting: Is it your intention for your entire estate to pass to your spouse, or do you wish for some of your estate to pass to your children immediately following your death?
- Mutual Will Agreements: If all of your estate is passing to your new spouse in the first instance, is it appropriate to enter into a Mutual Will Agreement with your spouse to prevent them from altering their Will to disinherit your children following your death?
- Right of Occupation: If property is held in your sole name or as tenants in common with your spouse do you want this property to pass to your spouse, or alternatively should your spouse be granted a right of occupation to ensure the house can ultimately pass to your children?
Further information on considerations required by blended families can be found here.
How can HHG Legal Group assist with estate planning following or in contemplation of marriage?
We can provide guidance and assistance throughout the estate planning process. Our team of estate planning lawyers can help you navigate legal complexities and develop a comprehensive estate plan that aligns with your goals and objectives.
How often should I review and update my estate planning?
It is recommended to review and update your estate planning documents annually or whenever there are significant changes within your personal life.
When it comes to estate planning, HHG Legal Group can be your trusted partner. With our extensive experience and expertise, our team of legal professionals is dedicated to providing tailored solutions that align with your specific needs and goals. By choosing us, you can be confident that you are working with a team that will guide you through the entire estate planning process.
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.
