If you are wishing to rehearse your marital vows in front of someone, your Wills and Estates lawyer may not be the most encouraging audience. Whilst poetically proclaiming your conviction that it will only be death that does you two apart, your lawyer is bound to interrupt you to ask, “and then what?”
Although slightly grim, this line of thinking will help preserve your interests and ensure that, after your death, your estate assets are distributed as intended. Indeed, the question does require consideration because marriage automatically revokes any previous will. Upon uttering “I do,” your spouse immediately becomes the primary candidate for the distribution of your estate and any objection can be met with a family provision claim.
A family provision claim is an application for adequate compensation from an estate. Typically, it is made by an eligible person who has not received a sufficient provision in the deceased’s will. The Court will decide whether such a claim exists by considering if the deceased held a moral responsibility and if they failed to uphold their legal obligation to adequately provide for the claimant (Part IV Administration and Probate Act). Marriage imposes an implied moral responsibility to provide for one’s spouse and children and therefore strengthens the likelihood of a successful family provision claim. Therefore, it is crucial that you take the time to revisit and review your will.
On the other hand, if you have a less optimistic lawyer, they might even ask you “what if it is not death that does you apart?”
In this case, you will be forced to consider the worst: divorce or separation.
Divorce:
In the instance of a divorce, any terms which applied to your ex-spouse will be immediately revoked, including and appointments and the allocation of assets.
However, an agreed property settlement may provide your ex-spouse with an avenue for a successful family provision claim. The claim will take into consideration factors such as existing children, any contributions made by your former spouse to your welfare, the nature and duration of the relationship.
The bottom line is that the legal consequence of marriage may continue to haunt you, even after a divorce.
Separation:
Conversely, a separation in the marriage will not impact a will. If you maintain your legally married status, your spouse will remain entitled to inherit any assets or appointed roles that they have been named to command. This includes rights to properties left to them and the ability to act as the executor of your estate.
All this might eventually lead to you asking the question “will anything ever do us apart?”
Excluding a Person from your Will:
The truth is that an eligible person cannot be expressly excluded from a will. However, there are positive steps that you can take to minimise the claims that an eligible person may have.
Some of these include:
- Establishing a protective trust to minimise your owned assets.
- Pre-emptively outlining significant support that has been provided to the beneficiary.
- Preparing an affidavit to accompany your will as an explanation for the reasons behind your decisions when making your will.
At Nevile & Co we insist on congratulating your marriage once we ensure that your interests and assets are secure and will be allocated according to your own intention.
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
