A sudden change in civil status can invalidate your existing will
The idea of getting married in an impromptu ceremony seems romantic on the surface, but it’s a decision that could have serious legal repercussions if you have an existing will.
Morrison Kent Lawyers associate Jenny Lowe encountered a case wherein a terminally ill woman married her long-term de facto partner as a gesture of romance before she died. Her estate was left to her partner, but their sudden marriage wound up invalidating the will she had drawn up previously – a “nasty surprise” for the family.
“When a will exists before marriage, once marriage occurs, the will is no longer considered legally valid, unless the will was specifically made ‘in contemplation of the marriage’,” Holland Beckett partner Leesa Speed told NZ Lawyer.
“If the will is not made in contemplation of marriage, this means any gifts or wishes in the will are cancelled upon marriage and the person is treated as having died intestate (without a valid will). The Administration Act 1969 would then determine how the person’s estate is distributed.”
In the case encountered by Lowe, the woman’s de facto partner wound up obtaining most of the estate due to the setup of the original will, although it happened under intestacy laws.
“But…that could easily have gone the other way,” Lowe pointed out.
On the flip side, legal technicalities around wills can also impact de facto partners who have separated.
“I have had wills where the de facto partners were separated for decades, but the will-maker didn’t update their will, leaving everything to their ex-partner,” Lowe shared. “In these cases, there is a limit on what we can do under probate jurisdiction, which is very binary. The only question is whether the ex-partner has the authority, regardless of what happened.”
