I Do’s and to Do’s – make sure a Will is on that list!
“If something was to happen to you, do you really want your family going through the added stress and cost that arises when you don’t have a Will?”
Congratulations! You’re getting married and on your wedding planning checklist there is most likely a thousand things to organise, from table settings to venue hire - or maybe you’re recently married and enjoying the blissful honeymoon period trying to ignore the list of things you have to catch up on. Either way, if you are one of the estimated 9.9million (52%) of Australian Adults who do not have a Will then you should add this to your list of things to do!
I know, I know, you’ve already got a lot on your plate and even more to pay for so getting a Will is not high on your priority list BUT it should be. If it’s not, the rules of intestacy may apply on your passing and these rules can produce some strange and unintended consequences as you can find out here. Even more important to remember is that a Will is not for you – it’s for the people you leave behind and making their grieving process that little bit easier if the worst was to happen.
Effect of Marriage
The effect of marriage is that it automatically revokes a Will unless the Will is made in contemplation of marriage (which is a effectively a specific clause that can be included in a Will) save for a few exceptions. This means that any Will made prior to the date you enter a legally valid marriage – usually the date you say your “I do’s” and sign your marriage certificate – is cancelled. In Queensland entering into a civil partnership also has the effect of revoking a pre-existing will.
Exceptions
As with most things, there are some exceptions to the general rule which mean that certain provisions contained in a Will made prior to a marriage won’t be revoke after a marriage.
The provisions are:
a gift to the person to whom you are married to at the time of your death;
an appointment as executor, trustee, advisory trustee or guardian of the person to whom you are married to at the time of your death
a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the willmaker or to an administrator of any estate of the willmaker if the power of appointment were not exercised.
What does it all mean?
Given the general rule that your Will is revoked upon marriage, if you do not do a new Will or a Will in contemplation of marriage then are the risks that:
any gifts left to family, children or friends in an existing Will can fail.
If you have not appointed your spouse in an existing Will or for some reason they are unable to act as your Executor there is also a risk that your estate may be administered by The Public Trustee of Queensland which can increase the costs that come out of your Estate; and
The Rules of Intestacy may be invoked which may lead to unintended results and can make it more difficult to administer your Will.
If something was to happen to you, do you really want your family going through the added stress and cost that arises when you don’t have a Will? Your wedding is a plan for your future so as part of the wedding planning, add your new or updated Will to the list.
