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Wills: An ex wins – and a wife misses out

You may be shocked to know that your ex might still inherit your estate – and that getting married again might cancel your will, says Jenny Lowe of Morrison Kent.

9 March 2022

Do you know what happens to your will when you get married? And if you get divorced?

The answers will surprise you, says Jenny Lowe of Morrison Kent, www.morrisonkent.com.

And often, it won’t be you who gets a shock, she says. It’ll be your loved ones who are left reeling after you’ve died when they come to apply for probate of the will.

The astonishing answers are that:

  • Marriage automatically cancels a will; and
  • Divorcing someone doesn’t.

This really does seem to be entirely backwards to what common sense would dictate, says Lowe.

Lowe is one of few lawyers in New Zealand specialising in reseals, probate and letters of administration applications, so she deals with these difficult cases all the time.

And she says many families are shocked when they realise what the law means for their inheritance.

Marriage cancels a will

Lowe says she recently had an unfortunate case where a client died after a de-facto relationship with her partner of many decades.

Years before she died, she had made a will leaving her de facto partner almost her entire estate.

“When she became ill leading up to her death, they decided, as a romantic gesture, to get married and did so to the delight of their friends and family.

“But she never dreamed it would have any effect on her already carefully prepared legal paperwork.”

The lawyers only found out that she had got married after she died when the family prepared to apply for probate.

“Even though she had married the same person who was in the will, the will was automatically cancelled, and the court treated her as having no will at all.”

In this case, the partner was lucky, says Lowe.

Because of how their assets were already set up and the size of her estate, the rules governing people without wills meant her assets were divided almost exactly the same way as they would have been if the will was valid.

But that won’t always be the case, says Lowe.

“In many cases the effect of the rules governing people without wills may be very different from what you decided in your will.”

How to prevent it

Lowe says you can avoid this issue by inserting a clause in the will that says specifically that you are expecting to get married to a particular person and that this shouldn’t cancel the will if it does happen.

Still, she says, even wills made by lawyers who carefully consider your situation won’t generally include this clause unless you specifically discuss your plans to get married soon.

The best solution is to update your will regularly as your circumstances change, she says.

“Discuss your upcoming plans with your lawyer and tell them your wishes, so the lawyer can make sure your will caters for all possible eventualities.”

Divorce does not cancel a will

Many wills leave the entire estate or a large part of it to a partner, so separating or divorcing that partner would seem a sensible time for a will to be automatically cancelled.

However, neither separation nor actual divorce cancels a will.

They do, however, have an effect on the will under some circumstances.

If, for example, the divorced partner is appointed a trustee or given a gift under the will, but the couple has an order from the court formally dissolving their marriage, the will is read as if the divorced partner died before the deceased partner (even though they are in fact still alive, just divorced).

This at least means the divorced partner doesn’t receive their gifts and aren’t put in charge of running the estate, but often leaves awkward holes in the will if there isn’t a backup provision in the document.

It also only works with the correct paperwork in place, says Lowe.

“We’ve seen many difficult cases where a couple has been separated, sometimes for decades, but never formally divorced. The will was also never updated.

“So the divorced partner is still entitled to everything left to them in the will.”

Civil unions follow exactly the same rules as marriages, she says.

Going into or out of a de-facto relationship does not affect the will’s validity. This can often create very unsatisfactory results, especially when wills are not updated over a long time.

Other laws might help

There are other laws (particularly those surrounding property and relationships) that will ease this situation, and in cases where wills are accidentally cancelled, these should make the outcome more in line with what you’d expect.

Still, they’re often not exactly what you would have wanted when you wrote your will and they come at the cost of extra time and stress – and will cost the survivors in legal fees.

If families feel justice hasn’t been done as their loved one wanted, they could also sign documentation agreeing to the original will’s intentions, but only if everyone involved agrees.

Family members will sometimes sign away their interests, but this relies on their sense of moral obligation and it only works if everyone agrees and is willing to sign the paperwork, says Lowe.

Outdated rules

As with so many rules in the world of probates, these rules were put in place often a hundred or several hundred years ago when the situation in society was very different.

Marriage used to happen at the beginning of a relationship, before a couple’s assets and money were intermingled, but today that’s rarely the case.

Divorce was so rare back then that lawmakers didn’t even feel it needed to be mentioned.

Since those days, a lot has changed in our society, but very little has changed in probate law.

Whenever your relationship status is due to change, think about your will and see a lawyer who can guide you through the surprising byways you have to navigate. Your family will thank you for it.

For more information

If you find yourself faced with one of these awful surprises after a loved one has died, Morrison Kent has a whole team of experts who can unravel the confusion and rebuild the last wishes in the will as far as it’s possible to do.

For more information, give probates specialist Jenny Lowe a call on 04 916 0153 or email jenny.lowe@morrisonkent.com.

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