Many people do not realise that changes in their relationship status can affect the validity of their Will. Depending on your situation, entering into a marriage or civil union can invalidate your Will, and leave you intestate (which is where you pass away without a Will). If you pass away intestate, then a friend, relative or organisation like the Public Trust may need to apply to the High Court for the ability to distribute your estate (called “letters of administration”). That can be an expensive, time consuming and confusing process, and is best avoided.
In this article, we discuss some general suggestions for ordering your affairs when there are changes to your relationship status.
Getting married or entering into a civil union
If you already have a Will and are getting married or entering into a civil union, then you need to update your Will. Under the Wills Act 2007, if a Will is not explicitly created in contemplation of that marriage or civil union, then it will become void once the marriage or civil union occurs. That means that any gifts or wishes in your Will are cancelled, and you could end up passing away intestate.
When someone passes away intestate, the Administration Act 1969 determines how their estate is to be distributed. This might result in unintended consequences in terms of who receives what under your estate.
Getting divorced – dissolving a marriage or civil union
If you have a Will and have separated from your spouse or partner, it is important to review the terms to ensure it still reflects your wishes.
If your marriage or civil union has been officially dissolved (which cannot happen until you have been separated for at least two years), then your Will should still be valid, but any gifts that would have passed to your spouse or partner are revoked. This is also the case if you get a separation order from the Family Court. However, up until that dissolution happens then any gifts to your ex will not be revoked and they will still benefit if you were to pass away.
De facto relationships
The beginning and end of a de facto relationship does not void or limit a Will in the same way that a marriage or civil union does. This means that if you gift something to your de facto partner in your Will and later separate, that gift will not be revoked unless you change your Will.
Something else to consider when reviewing your Will is appointing testamentary guardians for your children. Testamentary guardians are people you choose to have an ongoing role in the lives of your children if you were to pass away. While this does not give them an automatic right to care for your children, it enables them to play an ongoing monitoring role by helping to make big decisions in the children’s lives, in consultation with any other guardians. These decisions include things like where they go to school, travel and moving cities.
In summary, it is important to review your Will whenever your experience major life changes, including changes in your relationship status, having children, or acquiring new assets. Getting legal advice will ensure that you understand what would happen if you passed away (including any potential challenges that could be made to your Will or estate), and prepare a Will that reflects your wishes.