Alert to Married Same Sex Couples - Is Your Will Still Valid?
The battle for marriage equality for same sex couples is over – or is it? A question has arisen in relation to the law of succession and whether or not Wills made prior to marriage are valid.
In December 2017, the Australian Government made changes to Australian law legalising same sex marriages. As a result, Australian law now recognises same sex marriages which took place overseas in countries where those marriages were recorded as legal. In other words, same sex couples who legally wed overseas are now legally married under Australian law.
This has raised a question about whether any estate plans or Wills signed before the changes to legislation (during the legal bar on same sex marriage) have now been nullified.
Wills made prior to changes in legislation
In South Australia and many other parts of Australia, a marriage revokes a Will unless that Will was made ‘in contemplation of marriage’ and specifically states this in the Will. The sudden recognition of same sex marriages under Australian law suggests that Wills made without specifically stating that they were made ‘in contemplation of marriage’ by persons whose marriages are now recognised may (likely) have been revoked by the recognition of those marriages.
There is nothing certain about this yet as it has not been tested in an Australian Court, however persons who fall under this uncertainty may no longer have a valid Will and may be deemed to as being intestate (without a will) in the event of death meaning that their assets will be distributed according to the laws of intestacy. Intestacy laws are very strict and, in the event that a Will is found to be invalid, the wishes of the testator will not be carried under the terms of the Will. This could mean that the spouse may receive some or even all of the estate whilst others who may have been named as beneficiaries will miss out.
If you are uncertain as to whether or not your Will is still valid, it would be a good idea to consult an experienced solicitor. To avoid stress and heartache for those you leave behind and to ensure that you have peace of mind that your estate will be distributed according to your wishes, make an appointment today to have your estate documents reviewed.
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