As relationships change it is important to understand the effect that marriage, divorce and separation can have on your Will.
Marriage and Wills
Many people are unaware that their will becomes invalid on the day they get married. If you pass away without having updated your will to consider your new relationship, you will have passed away without a valid will. Without a valid will the laws of intestacy will direct that a large part of your Estate will be paid to your new spouse. This may not be a concern for couples who are marrying for the first time; however it can become a problem for couples who may be marrying for a second or third time and have children from a previous relationship who they also wish to provide for. It is important to consider updating your Will before, or immediately after you get married.
There is one exception to the marriage rule, should you make a will ‘in contemplation of marriage’ that expressly states that you have considered your new spouse, then upon your marriage your will is not revoked.
If you have recently married or are considering marrying in the near future please contact our Wills department to ensure that your will is valid and reflects your wishes.
Separation, Divorce and Wills
Both separation and divorce have different effects on your Will and it is important that you review your will immediately after you separate from your spouse.
Marriage separation has no effect on your Will; however it is crucial that during the period of separation prior to divorce that you update your Will to reflect your relationship change. As your Will is not invalidated as a result of separation you may find that your ex-spouse will be entitled to a substantial part of your assets.
A formal divorce in Victoria will invalidate all clauses in your will that refers to your ex-spouse, namely clauses appointing them as Executor and any clauses leaving them a gift or the residue of your estate. When clauses are invalidated in your Will it can cause considerable issues in the reading and interpretation of the Will that may result in substantial legal fees being incurred to interpret your Will.
Next Steps
We recommend that you actively review your Will every three years. Should you enter into or end a relationship please contact our Wills department to discuss whether your Will is valid and reflects your new relationship status.
Written by Alix Steed, Wills & Estates Solicitor at Beck Legal
asteed@becklegal.com.au