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Reviewing your Will

April 30, 2018 by Perveen Maan

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017. It amended the Marriage Act 1961 to redefine marriage as ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’.

This change presents a good opportunity to review your Will.

Reviewing your will does not have to be time-consuming or costly. Doing so now could save your estate significant legal fees should your Will be challenged in the future.

You should review your Will if:

1.   You have recently married

If you had a Will prior to getting married, the Will would be revoked by marriage.

If you die without a valid Will, you die intestate and your estate is distributed in accordance with intestacy laws, regardless of your wishes.

This is particularly important for parties re-marrying, as intestacy laws may not make enough or conversely, make too much provision for children or spouses from previous marriages. This could lead to costly disputes for the estate should former and current families disagree on how the estate should be distributed.

2.   You intend to marry soon

The moment you marry, your existing Will is revoked, after which you should execute a new Will. There is inevitably, a “gap” between marrying and executing a new Will.

You can avoid this “gap” by executing a will in contemplation of marriage prior to getting married. This mitigates the risk to your estate.

3.   You have recently separated

It is imperative you review your Will if you have recently separated from a spouse but are not yet divorced.

If you fail to update your Will and you pass away, your spouse may inherit any property you intended to leave to them while marries, regardless of your change in circumstances.  Similarly, if your Will names your spouse as your executor, they will be entitled to take up that role regardless if you wanted them to or not.

4.   You married a same-sex partner overseas prior to 9 December 2017

The amendments to the Marriage Act means that overseas same-sex marriages that were not previously recognised in Australia prior to 9 December 2017, are now recognised retrospectively.

The effect of this is that all same-sex couples married overseas are now automatically deemed to be married in Australia and as such, their previous Wills may be invalid. This uncertainty could lead to challenges against their Wills in the future. To avoid this uncertainty, new Wills should be executed.

5.   You married a same-sex partner overseas prior to 9 December 2017, and have now separated

If you and your same-sex partner whom you married overseas prior to 9 December 2017 have separated but have not formally divorced in the country the marriage took place in, then under the new Australian law, you are still married.

The effect of this is that your Will prior to your marriage is invalid. If you have not made a new Will and you were to pass away intestate, your ex-spouse is likely to be a beneficiary.

Furthermore, if you have remarried, the subsequent marriage is likely to be void.

A Will ensures the orderly management of your estate when you are not around to do so.

It is important to review your Will at every major juncture in your life (a birth, death, marriage, acquisition of property, disposal of property) and when there is a significant change in the law.

For further information please contact:

Perveen Maan
+61 3 9088 0487
pkm@whiteandmason.com.au

Got questions? Get in touch.

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