Trigger events to deem a Last Will and Testament invalid

Superannuation

April 5, 2018

Trigger events to deem a Last Will and Testament invalid

With a Last Will and Testament being the only legally binding document accepted by law as an individual’s final wishes, it is surprising to discover the amount of Australians that die either without a will or with an invalid will.

Studies have shown that at least 45% of Australians do not have a valid will.

Whether a person has a current will, or it is on their to-do list, there are important considerations to be made in relation to major life events that could deem either a current will, or a poorly considered future will, invalid.

The two main triggers that can deem a will invalid are:

divorce and;
marriage (lesser-known but equally important).

Wills in the case of marriage

Many Australians are unaware that marriage will generally revoke an existing will, regardless of its contents.

There are exceptions to this general rule, and the extent of these can vary from state to state.

For a will to remain valid following marriage it must be made in contemplation of the marriage and expressly stated.

Depending on the jurisdiction, a will made in contemplation of marriage generally may still deem a will invalid.

In contrast, a will made expressly in contemplation of a marriage that does not happen can also revoke the will.

Wills in the case of same-sex marriage

With recent same-sex marriage legislative amendments, there are some important areas for consideration.

As Australian law has only recently recognised same-sex marriage, it is unlikely that existing wills of LGBTIQ couples, who are now able to marry, would have been prepared with expressed contemplation of said marriage.

In addition, same-sex couples that have been married overseas could now have their marriage recognised under Australian law.

Again, in these circumstances it is unlikely that an existing will would have been prepared with expressed contemplation of a legal Australian marriage.

Wills in the case of death

If a person dies without a will, or with an invalid will, they have “died intestate”.

The administration of their estate will pass in accordance with the laws of intestacy specific to the jurisdiction. This can result in the deceased’s estate being distributed in a way misaligned with their final wishes.

It is important to note that superannuation, by default, is not deemed an asset of an estate unless there has been a clear nomination that it will form part of the estate’s assets.

The importance of updating a will

As a will is prepared at a single point in time, to ensure a person’s final wishes are met it is vitally important to review and update a will, as necessary.

It is preferable to review a will every three years or whenever a major life event occurs, such as a marriage, new baby, separation, divorce, death or significant change in asset ownership.