It may be the last thing you are thinking about in the lead up to your wedding, however it is important to realise that under NSW legislation, unless your Will is made in contemplation of marriage, it is revoked when you marry. After marriage, the only gifts that remain valid in your Will are those to the person you subsequently marry. The effect of this legislation may in some cases lead to devastating results for your family.
Take for example ‘Peter’, who is in a de facto relationship with ‘Sally’ and has two children from a previous relationship. Peter’s Will leaves his estate 50/50 between Sally and his children. Peter and Sally decide to get married, and not long afterwards Peter dies. While Sally is still entitled to her 50% share of Peter’s estate, unfortunately the gift of the other 50% to his children is revoked and therefore fails. In this case, the balance of his estate is distributed in accordance with a legal formula. In short, in addition to her 50% share, Sally would also be entitled to all of Peter’s personal effects, $350,000.00, and half of the reminder of the estate. This would leave Peter’s two children receiving well below his intended gift to them, and depending on the size of Peter’s estate, potentially nothing.
Another issue to be aware of revolves around the recent legalisation of same sex marriage in Australia. Couples who married overseas before their marriage was recognised by Australian law may find that with their marriage now recognised, their Wills have become invalid. There seems to be quite a bit of uncertainty about how the law would be applied in this situation, and we may need to wait for a test case before there is some clarity on the Court’s interpretation of the legislation.
If you have recently been married, are planning to marry, or find that your marriage is now recognised in Australia, it is important that you review and update your Will!
