Mar­riage can make wills in­valid

Kapi-Mana News - - OPINION/NEWS -

If you had a will made be­fore you got mar­ried, it is prob­a­bly no longer valid, un­less it was made in con­tem­pla­tion of that mar­riage.

If part­ners en­tered into a civil union or were in a de facto re­la­tion­ship and made new wills at that time, their wills can be­come in­valid if they later marry.

Mar­riage au­to­mat­i­cally ( and un­in­ten­tion­ally) can­cels all ex­ist­ing wills, with un­in­tended con­se­quences for the cou­ple. This also ap­plies if you make a will while sin­gle and later get mar­ried or en­ter into a civil union.

If one of them dies, their will is in­valid and their es­tate will be dis­trib­uted in ac­cor­dance with set cri­te­ria, rather than what was recorded in the will (that was signed be­fore mar­riage).

That means the de­ceased per- son’s wishes are not car­ried out and their spouse does not re­ceive the in­her­i­tance in­tended.

If a civil union cou­ple de­cides to get mar­ried this will have an im­pact on the cou­ple’s ex­ist­ing wills.

Also, if you are in a de facto re­la­tion­ship and are con­tem­plat­ing a civil union or mar­riage, this will af­fect your ex­ist­ing wills.

The law pro­vides for sev­eral ways to can­cel a will.

One is that if you get mar­ried or en­ter into a civil union. That will au­to­mat­i­cally can­cel any will you have made. That would still ap­ply if you have pre­vi­ously en­tered into a civil union and at a later stage, you de­cide to get mar­ried.

There are a few ex­cep­tions. The most common is if your will is made ‘‘in con­tem­pla­tion’’ of that par­tic­u­lar mar­riage or civil union.

The best way to stop your will from be­ing au­to­mat­i­cally can­celled if you were to marry or en­ter into a civil union is to in­clude spe­cific word­ing in your will stat­ing that in­ten­tion.

The mes­sage for cou­ples who have re­cently en­tered into a civil union or mar­riage is to check that your will has not been re­voked by your mar­riage.

If you are plan­ning to get mar­ried or to en­ter into a civil union you should en­sure your will clearly states that it is made ‘‘in con­tem­pla­tion’’ of that mar­riage or civil union, so your will does not get un­in­ten­tion­ally can­celled.

If you die with­out a will, the law de­cides who gets your es­tate and the re­sult is of­ten dif­fer­ent from what you would have cho­sen your­self.

In a re­cent case, a per­son died with­out a will, leav­ing his part­ner and his mother feud­ing over the dis­tri­bu­tion of prop­erty owned at his death.

Where one part­ner dies, the sur­viv­ing part­ner has a choice as to whether they make an ap­pli­ca­tion un­der the Prop­erty (Re­la­tion­ships) Act or whether they take what they are given in the de­ceased’s will.

In this par­tic­u­lar case, the part­ner chose not to ap­ply un­der the Act which meant (be­cause they were not mar­ried and the de­ceased had no will) that prop- erty owned in joint names with the de­ceased passed to her by ‘‘sur­vivor­ship’’.

The prop­erty owned by the de­ceased in his sole name passed to his es­tate and un­der our law was to be dis­trib­uted to his par­ents.

Be­cause most of the as­sets were owned jointly by the cou­ple, the part­ner took most of the de­ceased’s prop­erty.

Prob­lems and dis­putes can be min­imised by hav­ing an up-to­date will.

Another step you can take to re­duce risk is en­ter­ing a Con­tract­ing Out Agree­ment, which deals with how those is­sues will be han­dled.

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