What is the effect of marriage or divorce on a Will

What will happen if I marry after making a Will?

Under the law, marriage automatically revokes a Will. Thus, if you were to die, you will be considered to have died intestate (or without a Will) and the rules on intestacy will apply.

An exception is if the Will was made in anticipation of marriage. This generally means inserting a clause in the Will expressly stating that the Will was made with full knowledge that you are about to marry and that the Will should not be revoked in the event of marriage. It would be prudent to have a solicitor help you draft the correct clause. Without this clause, it may be very difficult, costly, and time consuming for the executors to prove the intention of the deceased.

What will happen if I get a divorce after making a will?

A divorce will not invalidate your entire Will but will revoke your former spouse’s appointment as an executor, trustee or guardian and any gifts or bequests made to him or her. An exemption is if the courts find that you have intended otherwise and would still like your former partner to still inherit. There are also other provisions in a Will that may continue to remain valid as regards your former spouse, such as where instructions relating to the care of your children are provided.

The partial revocation of a Will does not apply, however, if the parties were only separated or a petition for divorce has been filed but not yet finalised. If one of the spouses pass away before the divorce has been granted, then any gift or bequest from the deceased spouse to the surviving spouse will remain valid. The surviving spouse can also act as executor or administrator and will also be entitled to a portion of the estate.

It is therefore good practice to update your Will if you are already separated from your spouse and you have no plans of getting back with them.

What happens if Will does not contain an “in contemplation of marriage clause” but provides a gift for the spouse?

Despite the absence of an “in contemplation of marriage clause”, any bequest or gift made to the surviving spouse prior to the marriage will remain valid.

What will happen if I marry after I execute an Enduring Power of Attorney?

Unlike its effect on Wills, marriage does not automatically revoke a previously made Power of Attorney. An Enduring Power of Attorney allows you to name an Attorney in Fact who would make legal and financial decisions Any revocation should be clear and in writing.

What will happen if I marry after I execute an Enduring Power of Guardianship?

An Enduring Power of Guardianship allows one person to appoint another to make health and lifestyle decisions in the event the appointer becomes incapacitated to make those decisions. Unlike an Enduring Power of Attorney, any appointment of an Enduring Power of Guardianship is automatically revoked upon marriage, unless the person appointed becomes their spouse.

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