Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 1 July 2017.
David makes a home-made will before he marries Rebecca. The will is properly executed and witnessed.
David’s will leaves half of his estate to Rebecca and the other half is left to his two children from a previous relationship.
David appoints one of his children, Sam as his executor. David informs Sam that he has made a new will and informs him of its whereabouts.
Many years later, when David passes away, Sam locates the will and takes it to a solicitor. The solicitor notices that the will is dated before David’s marriage to Rebecca.
The solicitor advises Sam that David’s marriage to Rebecca revoked Sam’s appointment as executor and revokes the gifts to him and his siblings. The provision for Rebecca, however is still valid.
Sam is advised that the half of David’s estate that was to be left to the children, will now be dealt with under the rules of intestacy. This means that half of David’s estate will be distributed as if he had not made a will at all.
The size of David’s estate, means that his children will receive nothing and Rebecca receives the whole of his estate.
The solicitor advises Sam that if his late father had included a clause in his will, to the effect that it was “in contemplation of marriage”, that the will would have been valid.
Sam and his solicitor discuss the advantages and disadvantages of making a family provision application, contesting David’s will.
It should also be noted that similar issues can arise from a divorce. A divorce revokes any provision made for a former spouse, unless it is specifically noted in the will.
It is important to update your will if you are married or divorced and to get proper advice.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
