WEDDING BELLS ON THE HORIZON?

Posted by Emma Miller on October 28 2022 in News

 

I know this may be the last thing you’re thinking about when packing for your honeymoon, however, it would be wise to consider updating your Will.

A little unknown fact is that upon marriage or a civil union, your existing Will is automatically declared null and void pursuant to section 18 of the Wills Act 2007.

This rule dates back as far as the 16th Century, it was to ensure that the new spouse (and any children of that marriage) would benefit by creating an intestacy in absence of a new Will.

However, in present times, this rule can be somewhat problematic, as the era of the nuclear family unit has been suspended by a modern take as blended families are becoming common in today’s society.

One scenario that commonly occurs is when there is a couple who each have children from previous relationships and their own separate assets. Both of them have had their Wills prepared and signed many years ago when they started their relationship, leaving their separate assets to their children in knowledge that their joint property would go to the survivor of them. One day, they decide to make it official and get married. Without knowing, they have both invalidated their existing Wills and upon their death, their respective estate would be distributed in accordance with section 77 of the Administration Act 1969. This means that their estate would be distributed as follows:
 

• The survivor of them would receive the prescribed amount plus a one third share of the residue estate; and
• The deceased’s children would receive a two third share of the residue estate (and if more than one of them, then the two third share would be divided equally).

This is vastly different from what the existing Will had provided the deceased’s children.

There are methods of correcting this unintentional error by the deceased. However, it would mean either signing a Deed of Family Arrangement (which means all parties involved must be adults and all agree to the terms) or apply for a Court Order to vary the Will (which can be expensive and may not have the desired effect).

To avoid this issue from arising, you have two options:

Option One: Prepare your Will in contemplation of marriage to your significant other. A Will will remain current if the following words are included:

“This Will is made in contemplation of my [marriage to/entering into a civil union with] [person’s name]. Any provision which I make for [him/her] in this Will is conditional on the [marriage / civil union] taking place.”

Option Two: Update your Will immediately following your marriage or civil union and preferably before you head off on your honeymoon.

If you would like to discuss this topic in further detail or update your Will, please contact Emma Miller, Registered Legal Executive.

Emma Miller | Legal Executive | Emma.Miller@shieffangland.co.nz