Australia: How does marriage affect your Will?

For most people their Wedding Day is one of the most memorable days of their life. A happy time full of hope and excitement for the future.

However, what many people are not aware of is that a Will is revoked by the marriage of the testator.¹ This means that if you get married and fail to update your Will, you will die intestate and your estate will be distributed according to a predetermined formula under the rules of intestacy.

Therefore, it is important to review your Will and update your Will after the marriage. You are also able to make a Will in contemplation of your marriage. This involves including an express clause in your Will that your Will is made in contemplation of your marriage to your spouse.

Hypothetical scenario

Jane Harris had two children, Billy and Bob from her first de facto relationship. Jane owned a property and had $100,000 in her bank account. Jane made a Will leaving the whole of her estate to her children Billy and Bob. Jane met Robert Smith and they decided to get married. Jane and Robert were married for two years when Jane passed away.

Jane and Robert had always discussed that Jane had a Will leaving everything to her children. Jane did not update her Will after they got married.

Jane passed away intestate as her marriage to Robert revoked her prior Will.

Under the rules of intestacy, Robert was entitled to Jane's personal effects, and a statutory legacy (the sum of $350,000 adjusted by CPI) and one half of the remainder (if any) of the estate. Jane's children would be entitled to the remaining part of the intestate estate.

The amount the children would receive (if anything) would depend on value of the estate. If the value of the estate was less than the statutory legacy then Robert would receive the whole of the estate and Jane's children would be left with nothing.

This outcome is not what Jane have wanted to occur upon her passing.

Lesson to be learned

If you are planning on getting married and have a prior Will it is important you look at updating the Will prior to your marriage to include an express clause that your Will is made in contemplation of your marriage or as soon as possible after your marriage takes place.

If you are in a relationship with blended families, it is important that you update your Will to properly reflect your intentions as to how the estate is to be distributed. If you fail to have a current Will in place you risk the assets of your estate being distributed according to a predetermined formula under the Succession Act 2006 (NSW).

Footnote

¹ Section 12 of the Succession Act 2006 (NSW).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.