The historic change in the legal definition of marriage raises a number of issues in connection with estate planning including that of revocation by marriage.
Revocation means that the will is no longer valid and either occurs “voluntarily” or by “operation of law”.
A will may be revoked voluntarily by executing a new will or by the destruction of the existing will.
A will is revoked by operation of law through marriage or divorce.
In South Australia, the Wills Act states that a will made by a person is revoked by that person marrying or commencing a registered relationship unless the will is expressed to be made “in contemplation of marriage” or “in contemplation of the registration of a relationship under the Relationships Register Act 2016”. It is likely that many people who can now marry as a result of the amendment to the legal definition of marriage will currently have a valid will which, by operation of law, is revoked upon their marriage. It is therefore important that new wills are made in contemplation of marriage or a new will is promptly prepared following marriage.
The Wills Act also contains provisions addressing the end of a marriage or registered relationship. If, after making a will, the marriage or registered relationship is ended:
- a disposition of a beneficial interest in property by the will in favour of the former spouse or partner is revoked;
- an appointment by the will of the former spouse or partner as executor, trustee or guardian is revoked;
- a grant by the will of a power of appointment exercisable by or in favour of the spouse or partner is revoked.
The Will in these circumstances is to have effect with respect to the relevant revocation “as if the former spouse or partner had died on the date the marriage or registered relationship ended“. Obviously, in these circumstances it is important that legal advice is promptly obtained and estate planning documentation is updated to reflect this change.
If you wish to discuss your wills and estate planning requirements, contact us on 8523 8400 (Gawler) or 8211 6500 (Adelaide) to arrange an appointment for an initial no obligation consultation. Alternatively, send an email to email@example.com and we will contact you.