Legal Tip 259: Need to get a new will when Marrying

Discussion in 'Wills & Estate Planning' started by Terry_w, 15th Dec, 2019.

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  1. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Marriage revokes a will!

    Some people go from de facto to marriage with the same person, but it is often not realised that this will generally make any existing wills invalid.

    Under NSW law, for example, s 12 of the Succession Act 2006 (NSW) states that a will is revoked by marriage. But, a gift to the spouse will still be successful.

    If you are planning to marry, make the will in contemplation of marriage so that it will not be revoked, s 12(4) Succession Act

    SUCCESSION ACT 2006 - SECT 12 Effect of marriage on a will


    Example

    Bart and Millhouse are 40 when they become their same sex relationship. Each has children from a previous marriage.

    They live together for 4 years before they get married.

    Bart dies soon after.


    Bart had previously done his will about 2 years ago where he left 30% of his assets to Millhouse and 70% to his children. His will appointed his 20 year old son as executor.

    Bart’s will is revoked – but his gift to Millhouse is not. Bart dies partially intestate. The gifts to his children fail, but they will be effected by the intestacy laws – which in NSW state that the spouse and Children from a different parent must share with the survivor spouse getting a ‘statutory legacy’ (to be covered in a future tip). It is likely the children will get just a small portion of Bart’s estate.

    Also the executor nominated by Bart’s will is invalid as the executor is invalid. Family members can fight over who will Administer Bart’s estate.

    Moral of the story – redo your will after marriage. Even just signing the same with in front of new witnesses again can save you problems later (or save your family problems as your problem will not be able to be fixed, you’ll be dead).
     
  2. Trainee

    Trainee Well-Known Member

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    Since the contemplation of marriage clause does not have to be written down, who would revoke the will here?
     
  3. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    The legislation automatically revokes it.

    if such a will was submitted for probate the registrar requisition proof that it was made in contemplation of marriage.
     

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