Expertise, Trust, Wills, Estates and Enduring Powers of Attorney

The Impact Of Marriage And Other Relationships On Your Will

Marriage/Civil Union

The law provides that every Will made by a man or woman shall be revoked by his or her subsequent marriage or civil union. The only exception to this is that Wills expressed to be made in contemplation of marriage or civil union shall not be revoked by marriage or civil union to the person contemplated.

Put simply, if your Will was made before your current marriage or civil union, and was not made in express contemplation of that marriage or civil union, you are now intestate and should make a new Will without delay.

You should give particular consideration to the above if you are a settlor of a Family Trust. If your Will governs the power of appointment of trustees of the Family Trust, then your marriage or civil union may have a far greater effect than simply the revocation of your own Will. The general convention with Family Trusts is that the Will of the settlor controls the appointment and removal of trustees of the Trust. Most Family Trust Deeds provide that after the death of the surviving settlor, the power of appointment or removal of trustees will be vested in the appointor, who will be specified in the Will of the settlor as having such power or the executors of such Will. If your Will has been revoked, then the provisions of your Will that intended to specify an appointor of your Family Trust, may be of no effect. Without a valid Will, the power of appointment and removal of trustees of your Family Trust may revert to the appointed administrator or administrators of your intestate Estate, or the surviving of the Trust.

If your Family Trust provides for children of a former relationship, or, under a discretionary provision seeks to potentially benefit such children, or any other beneficiary to which other trustees are not as sympathetic as you may be, then the effect of the revocation of your Will may be that the power of appointment and removal of trustees vests to an unsympathetic appointor, such as your new spouse, who may remove sympathetic trustees and appoint new unsympathetic trustees which may adversely affect potential beneficiaries of your Family Trust, with the Trust operating after your death contrary to your wishes.

Therefore, the effect of your marriage or civil union revoking your Will, may have a systemic effect on your Family Trust and may have the effect that individuals intended to receive a benefit under your Family Trust may not receive any benefit at all.

A specific power of appointment in the Will however survives marriage or civil union if the property affected would not go to the executors if the testator did not exercise the power of appointment.

De facto relationships and your Will

There is no similar revocation of a Will for partners in a de facto relationship.

However since the Property (Relationships) Act came into force in 2002, de facto partners have the same rights as married couples or civil union partners when their partner dies. When a partners dies, the survivor can take the property left to them by will or make a claim in the Family Court for half of relationship assets. Surviving partners have only six months after the Court makes a grant of administration to choose one of these two options and give written notice of their choice. It is therefore important that the survivor seek legal advice quickly to avoid missing out on his/her entitlements and to make sure he/she follows the procedure required by the law.

Dissolution of marriage/civil union

If your marriage or civil union has been dissolved or made a nullity and your Will was made prior to that event, then certain aspects of your Will may be null and void. Generally speaking, any provision of your Will that seeks to give a benefit to that former spouse or seeks to appoint that former spouse an executor or trustee of your Will will be null and void.

Essentially, if a former spouse was to receive a benefit or legacy or be appointed as executor or trustee of your Will, those specific provisions of your will in relation to that former spouse will be held to be of no effect. If your current Will was made prior to the dissolution or nullity of your marriage or civil union, you should review its provisions.

For further information on Wills, please see our articles on asset protection , or contact Tony Fortune or Cathy Fisher or our Trust Administrator, Katherine McCarthy.