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Can Marriage Equality Affect a Couple’s Wills? – Check your Will hasn’t been revoked when you marry

Can Marriage Equality Affect a Couple’s Wills? – Check your Will hasn’t been revoked when you marry

When the changes to marriage law came into effect on 19 August 2013, we were asked an interesting question, “If a couple who were in a civil union decide to ‘upgrade’ to a marriage, will that mean that their Wills are cancelled?” It seems that the risk of accidentally revoking your Will by getting married is no longer reserved only for heterosexual couples. Same-sex couples now have access to the same unintended consequences of marriage. 

We’re not sure if ‘upgrade’ is the right word here. The answer, however, is that a Will probably would be cancelled in most cases. We will return to the ‘in most cases’ point later. First, let us look at why a change from civil union to marriage might affect the validity of a Will.

 How to cancel your Will

There have always been a number of ways in which a Will can be cancelled (the legal term is ‘revoked’). Section 16 of the Wills Act 2007 lists these, including signing a later Will, ripping up the old Will and getting married.

Section 18(1) of the Wills Act says, “A will is revoked if the will-maker marries or enters a civil union”. There are a few exceptions. The main one is a Will that is made ‘in contemplation of marriage’. This is where, for example, the Will-maker leaves some of her estate to her fiancé and says that he is to benefit whether or not the marriage takes place before she dies. No specific words are required provided the circumstances make it clear the Will is still to apply after the marriage.

This rule can prove something of a trap. Let’s look at Jack and Jill’s situation:

Jack and Jill have been living together for years. They each have children from previous marriages. Their Wills leave everything to each other. Suddenly Jack asks Jill to marry him. They get married but never think about their Wills. If Jack dies, Jill will no longer get the whole estate. Jack has died without a Will and Jill will have to share the estate with Jack’s children from his previous marriage.

Civil Union Act 2004

When this legislation was passed, the rules for married couples were also applied to civil union couples. The Act covers the possibility that after a couple has been in a civil union for a while, they might decide to get married. A couple in a civil union can change the form of that relationship (from civil union to marriage or vice versa) without having to dissolve the first relationship. That means that a married couple may also enter into a civil union with each other and two people in a civil union may marry each other.

The civil union law does not affect the basic rules of the Wills Act 2007: if you marry someone, your Will is revoked unless one of the exceptions applies, eg: you made a Will in contemplation of marriage. The recent change to the marriage laws does not really change the rules concerning Wills. Previously a man and a woman who were in a civil union would automatically revoke their Wills if they got married. Now same sex couples have the opportunity to revoke their Wills in the same way.

The message for all couples, including same sex couples, is quite straightforward:

  • If you have recently married, check your Will has not been revoked by your marriage; and
  • If you are thinking of getting married, your Will should say that it is made ‘in contemplation’ of your marriage to your intended spouse.

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