If you are getting married
Marriage automatically revokes a will, unless the will specifically contemplates the marriage and names your intended spouse.
First marriages are generally straight forward. Upon marriage, each partner executes a will in favour of the other partner. The wills are usually simple and short, and unless there are already children, or children are expected quickly, usually would not create a formal testamentary trust.
But departures from this ‘simple format’ can arise. For example:
- one partner may be significantly older than the other;
- one partner may be significantly wealthier than the other;
- one partner may be in litigation-prone profession, such as a doctor; and/or
- one partner may in poor health with a higher risk of mortality.
In cases like this legal advice should be sought as to whether any specific provisions should be in the will to make the will better suit the clients’ circumstances. We can ensure you receive high quality legal advice, so please let us know if you are getting married (or thinking about getting married) and we can happily peruse your estate planning needs.
If you are getting divorced
Divorce does not automatically revoke a will. This means all clients who are getting divorced or who have recently divorced need specific legal advice as to the status of their will. As you divide your assets after a divorce, so you should also revise your estate planning.
Separation has no effect on a will.
This is the case even if the partners have reached a property settlement.
This means, for example, that if a separated partner dies after reaching a property settlement and without making a new will his or her assets will still go to his or her spouse, and not to any other person, either under the terms of the earlier will or under the intestacy laws.
Blended families are common and are becoming more common. They create their own issues for estate planning. In cases of blended families, expert advice is needed to balance the genuinely competing claims of spouses, ex-spouses and different batches of children if your client dies prematurely. We can ensure that you receive such expert advice.
The general goal will be to ensure that your wishes are achieved, at least as far as the law allows them to be achieved. A further goal is to help you through what can be a very difficult and emotional process. Sometimes awkward questions must be asked, but we do our utmost to ask these questions with maximum sensitivity.
Family law interacts with estate planning law, and some complex and surprising issues can arise. If you are interested, the issues are discussed in a paper presented by Zinta Harris in 2006, which can be accessed here: Blended Families and Estate Planning by Zinta Harris.
The paper considers the complications caused by blended families in estate planning generally with extensive and detailed comments on:
- executor and trustee selection;
- testamentary trusts;
- succession of discretionary trust assets;
- succession of company assets;
- effect of joint tenancies;
- super and binding death benefit nominations;
- life insurance;
- binding financial agreements; and
- mutual wills.
Once again, please do not hesitate to contact us to discuss any such issues. We will ensure that you receive advice from an experienced person who can provide unfettered advice that is in your best interests.
The legal component of the above discussion was prepared by MLA Lawyers Pty.