The Marriage Act 1961 (Cth) defines marriage as "the union of two people to the exclusion of all others, voluntarily entered into for life". If you recently got married, congratulations! What happens next? You or your celebrant may have applied for a marriage certificate from the registry of births, deaths and marriages in the state or territory where you were married. A marriage certificate issued by the registry is the legal proof of your spouse.
Making a new will when you get married is probably the last thing on the to-do wedding list. While this task may seem arduous, it is such an important task to carry out. Getting married can impact on your existing will if it has been poorly drafted. Getting married can also dictate who are the persons entitled to the distribution of your estate if there is no will in place. Each scenario can turn into a complicated mess for your spouse to navigate, particularly at a time when they may grieve from the loss of their spouse due to death.
In NSW, a will is generally revoked by marriage. However, if your existing will makes:
a) a disposition to the person that is now your spouse, or
b) an appointment as executor, trustee, advisory trustee or guardian of the person that is now your spouse, then these provisions in your will remain unaffected by your marriage, provided your spouse is the same person referred to in your will at the time of your death.
A practical example of how the above provisions would work in real life follows:
A willmaker is in a long term de facto relationship with his partner. The willmaker has children from a previous relationship. The willmaker and his partner do not intend to marry or contemplate marrying each other. The willmaker made a will appointing his partner as the executor with some small provision and the balance of his estate to be divided equally between his children.
Two years later, the willmaker and the partner got married. Shortly after their marriage, the willmaker died.
The legal ramifications from the marriage meant that the relevant clauses giving small provision to the partner and appointing the partner as the executor remained in place. The rest of the clauses in the will were automatically revoked by marriage.
The willmaker is considered to have died partially intestate. This means the will is partially incomplete. The partial intestate estate has to be distributed in accordance with the intestate laws in the relevant state or territory. In NSW, the partner/spouse is entitled to a legacy of $350,000 CPI Indexed plus one half share of the residuary estate (if any is left over after satisfying the legacy) plus the personal property. The children of the willmaker are entitled to share between them the other one half share of the residuary estate (if any is left over after satisfying the legacy).
What could the willmaker have done to prevent his estate from becoming partially intestate? The will could have included the magic words "This will is made in contemplation of marriage but is not conditional upon such marriage taking place". Even if there is no intention to marry, it is important that the willmaker contemplates marriage in the context of a long de facto relationship but still records that the will is not conditional on such marriage taking place.
If you are getting married or in a de facto relationship, it is important to revisit your current will to ensure it reflects your wishes and seek legal advice on how to ensure these wishes remain in place if and when you marry.
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.
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