Marriage will revoke your will unless it is made in contemplation of marriage.
As you can appreciate, your estate planning is important. However, estate planning becomes especially critical when you are engaged to be married. Many individuals mistakenly assume that once their estate planning documents are prepared, they do not need to be reviewed. This is not the case. Big life events such as marriage revoke your will, that is, unless the will was made in contemplation of marriage and it should include a specific clause to that effect.
If you marry while relying on a will that was not made in contemplation of marriage, you may be treated as having no valid will. As a result, your estate will be administered under intestacy laws and may lead to unintended outcomes or other complications. One of these complications may be that those you intend to provide for, are no longer able to be provided for.
Marriage
First, we will briefly touch on what constitutes marriage in New South Wales.
To be legally married, you must meet the following criteria:
- You must not be intending to marry an individual from your immediate family;
- You must not currently be married to another individual;
- You must have the ability to understand what the marriage is and provide your consent; and
- The marriage ceremony must be solemnised by an authorised marriage celebrant.
It is also important to note that you must be eighteen years of age or over to get married, that is, unless one of you are aged between the ages sixteen and eighteen and you have sought approval. Such approval can be obtained by your parent/guardian or by the court.
There are many other aspects to marriage such as the required documents and the process.
Effect of marriage on a will
The Succession Act 2006 (NSW) clearly identifies the effect of marriage on a will, specifically in section 12.
This section clarifies that your will is revoked upon your marriage to another person.
However, there are some circumstances which lead to it not being revoked, at least in its entirety, such as:
- a disposition to the person you are married to at the time of your death;
- the appointment of your spouse as executor, trustee, advisory trustee or guardian; and
- where your will contemplates the implementation of a power of appointment where the property concerned would not otherwise pass to the executor, administrator, or the NSW Trustee and Guardian if the power were left unexercised.
It is important to note that your will remains valid and unchanged if there is a clause stating that it was made in contemplation of marriage.
How to protect yourself from your will being revoked
There are several steps you can take to reduce the risk of your will being revoked due to marriage, including:
- Regularly reviewing and updating your will/estate planning documents;
- Including a clause stating that your will is made in contemplation of marriage; and
- Seeking advice from a trusted wills and estates lawyer.
How de Groots can help you?
de Groots wills and estate lawyers, which was established in 1986, specialises in wills and estate planning along with estate administration and estate litigation.
Our wills and estate team are committed to providing personal, confidential and professional advice tailored to your situation. The estate planning team assists clients in relation to estate planning ranging from simple to complex matters.
If you are contemplating marriage or have recently gotten married, please feel free to contact our office to meet with one of our lawyers.
Read More on:
The Art of Bequest Planning
Implications of Death for Family Law Matters
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