Marriage Revokes A Will

Keeping your Will updated is important, especially when there are changing circumstances and particularly when that changing circumstance is your marriage.  The reason for that is a marriage revokes a Will, subject to some exceptions, for any bequests, that is gifts in the Will, as well as any appointments, such as an Executor.  While the origin of this rule developed from common law and old British laws the reasoning behind it was firstly to protect spouses following a marriage and then subsequently protect the Will maker from a former spouse on a remarriage.

The problem being that it can work both for and against the Will maker depending on the circumstances.  A person mentioned in the Will may lose their entitlement or even an appointment under the Will, such as the case of an executor, upon the marriage occurring.  Legislation introduced in 2008 sought to rectify one aspect of this so that, from that date, if the person referred to was still married to the Will maker upon the Will makers death any gift or appointment to that spouse was not revoked.  But this does not change the situation for example if there were children in which case any gift/s or appointment to the children would be invalid.  The legislation won’t help though if the Will and marriage both occurred prior to March, 2008.

If you are contemplating marriage at all and decide to make a Will prior to the marriage occurring, or even in circumstances where you may not intend to marry but just in the chance you might, it is best to word the Will in a way that shows the Will makers intention was that the Will was still intended to be valid.  It is certainly a trap for the unwary and another reason to make sure that you obtain proper legal advice when preparing your Will.

So the question may arise then, what about divorces.  As might be expected a divorce will void any gifts or appointment to a former spouse unless the Will specifically states otherwise.  At least that would preserve any gift to other persons, such as the children.  So the rule is simply, don’t take chances, keep your Will up to date with your circumstances and seek legal advice if you have any intention to marry or get divorced.  If you would like help with your Will, give me a call.

This article was written by: Mark

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