Your Will should be reviewed following significant changes in your life. This may include purchasing or selling major assets, having children, entering marriage, entering a de facto relationship, having children, divorce, or separation.
Similarly, the same sex marriage reforms in 2017 have prompted the need for same sex couples to seek legal advice regarding any Wills prepared prior to these reforms.
Marriage and Wills
Marriage will automatically revoke any Will made prior to the marriage unless the Will was made in contemplation of marriage. The Will should clearly state that it was prepared in planning or contemplation of marriage. If this intention is not shown, the marriage will invalidate the existing Will.
Same sex marriage reforms in 2017
Same sex marriage became legal in Australia on 9 December 2017, after the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. This law immediately recognised overseas same sex marriages, including those taking place prior to 9 December 2017 (provided that the marriage was legally recognisable in Australia).
But what impact did these reforms have on the legal status of Wills made by same sex couples married prior to the passing of this legislation?
Wills made by same sex married couples
Wills made by same sex couples prior to the marriage reforms in 2017 may now be invalid. This is particularly the case if the Will does not clearly indicate that it was made in contemplation of the marriage.
Therefore, same sex couples may need to revise any Wills prepared prior to these reforms, to ensure their spouses are legally recognised in their Wills. A failure to do so may result in expensive future legal contests between spouses and relatives.
Intestacy and same sex de facto couples
If someone dies without a valid Will, they are deemed to have died ‘intestate’. Dying intestate will result in someone’s estate being subject to the laws of intestacy.
If you are in a same sex de facto relationship, and don’t have children, your partner will most likely have the greatest claim to all or part of your estate (pursuant to the laws of intestacy). However, your partner may be required to prove that you were in fact living in a genuine de facto relationship. This process can be difficult and stressful, in an already challenging period. This highlights the importance of having a legally valid Will in place to support your wishes.
What to do?
There is uncertainty regarding the legal validity of Wills entered by same sex couples prior to the marriage reforms in 2017. If you are in this situation and have concerns regarding the validity of your Will, you should consult an experienced Wills and Estates lawyer to have you Will reviewed.
This will ensure that your wishes will be followed and may avoid a potential future dispute over your Will.
This article is intended as general information only. It is not legal advice. For more information, please contact the Tonkin Legal Group Wills and Estates team on (03) 9435 9044.
