What happens to a Will you already have when you marry? In summary, it is revoked (i.e.cancelled), except for any gifts made in favour of the person you are married to when you pass away. If you have nominated an executor who is also the person you’re married to when you die, this provision of your Will also ‘survives’ the marriage.
A pre-existing Will also survives a marriage where it was made ‘in contemplation of marriage’. So if you’re planning on making a Will and also planning on marrying it may be best to include such a provision-or review your Will once you marry.
What about when you divorce? The general rule is that the divorce of a will maker cancels any gift made in an existing Will to the divorced spouse, as well as any appointment of the divorced spouse as executor. However, none of this applies if it appears that the will maker did not wish the gift or appointment to be cancelled.
Perhaps the most dangerous situation of all is where a will maker (married or in a de facto relationship) separates from their spouse without divorcing (if they are married) – or even if they are thinking about separating. Wills (and other related matters, such as superannuation death benefit nominations) should be reviewed at this point to see if they are consistent with the new circumstances the client finds themselves in.
And, if all of the above is not enough, if you don’t have a Will, the government ‘intestacy’ provisions operate to distribute the estate according to a fixed, pre-defined scheme. In summary, if you’re thinking about separating or otherwise changing your marital status, a review of your current Will (or the creation of a Will if you don’t already have one) should be a priority.
For more information on Wills and Estates book an appointment with us today or contact our Family Law team at Tonkin Legal Group on (03) 9435 9044.
