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March 2013

Willing it to be so

The need to have a Will AND keep it up to date

There is sometimes a tendency, once a Will has been executed, to give no further thought to it. A Will should be regularly reviewed, at least every three to four years, to ensure that it continues to reflect your wishes, and the assets that you own.

Marriage and Wills

The above are not usually two concepts that are often considered together. However, you may be surprised to learn that a Will is automatically revoked upon marriage. This means, that if you were to die after marrying, and had not made a new Will since marriage, then it would be the equivalent of dying intestate. There is however an exception to this rule if the Will is specifically made in contemplation of the marriage. Therefore, the moral of this story, is to either make a Will before marriage in contemplation of it or, as soon as possible after the marriage, make a new Will.

Civil Unions

The same rules apply to civil unions as to marriage. In other words, a Will is revoked upon entering into a civil union unless it was made in contemplation of that union.

De Facto Relationships

The same rules do not apply in respect of de facto relationships. Entering into a de facto relationship does not revoke a Will. However, your circumstances will have changed with your entering into such a relationship that may require a review of your Will.

The End of Relationships

If you separate, divorce or end a marriage, civil union or de facto relationship then your Will is not automatically revoked but it is possible that certain clauses in the Will will no longer have effect. In the event that you separate or your marriage, civil union or de facto relationship comes to an end then it is our strong recommendation that you seek our legal advice as soon as possible regarding the provisions of your Will. Otherwise, you may find, that contrary to your intention at the time of your death, your assets may be left to an ex-spouse/civil union partner or de facto when that was not your wish at the time of your death.

Intestacy

An intestacy arises when there is no Will, no valid Will, or the Will has been revoked in one of the circumstances referred to above. In that case the law dictates how the estate is to be divided. There are rules depending on whether you are survived by a spouse, civil union partner or de facto partner, whether there are children, whether there are surviving parents and whether there are surviving siblings. Chances are that the way that the law will divide your assets in the event of an intestacy may bear little or no resemblance to how you would have preferred your assets to be divided. Furthermore, an intestacy can lead to increased legal costs and difficulty for your loved ones who are left behind especially if they see your assets being divided in a way that they know was at odds with your intentions and wishes.

Conclusions

It is important to have a Will. But it is as important to keep that Will up to date to reflect your circumstances as they change over the years.