Marriage, Wills & Enduring Powers of Attorney

What happens to our Wills & Enduring Powers of Attorney when we marry?

In most circumstances, getting married will have a significant effect on the way both your Will and Enduring Power of Attorney operate.

How is my Will likely to be affected?

Any gifts to each other in your Wills are not revoked by marriage, however the rest of your Wills may no longer be valid.

If one of you has children from a previous relationship any gifts to them in your Wills may fail.  Or, should the unfortunate event occur where you were both to pass away at the same time after marriage then your respective estates would not be gifted in accordance with your Wills – your estates would be distributed in accordance with the Rules of Intestacy as contained in the Succession Act 1981 (Qld), which may not be in line with your exact wishes.

What is an “in contemplation” clause?

If you already have firm plans for your wedding including the date and location, an “in contemplation” clause can be added to your Wills to provide evidence to the court your Wills have been made with the impending marriage in mind.

Reilly and Karin made Wills a year prior to their wedding including “in contemplation” clauses which included the planned date and location for their wedding.  Two weeks prior to the event a Covid outbreak occurred and their wedding was postponed due to the resulting lockdown.  In the meantime, their planned venue went out of business.  Instead of the elaborate affair originally planned, Reilly and Karin married in a small ceremony at Uluru with just a few family members in attendance.

Because their wedding differed from what was planned in their Wills, Reilly and Karin can no longer be confident the court will allow their Wills to stand.

What about my Enduring Power of Attorney?

Marriage revokes an Enduring Power of Attorney to the extent it gives power to someone other than your spouse.

Marni set up an Enduring Power of Attorney before marrying Stefan, where she appointed Stefan as sole attorney with her sister, Renate, as substitute attorney in the event Stefan was unable to act.  A year or two after their wedding Marni and Stefan were involved in a car accident leaving both of them in hospital and unable to manage their own affairs for some time.

Renate’s power as Marni’s attorney was revoked by Marni and Stefan’s marriage and Renate must apply to QCAT to be appointed as Marni’s guardian and administrator.  Not only is this an added stress for Renate during an already difficult time, the process is time-consuming and makes the job for Renate more difficult to sort out Marni’s affairs.

Ensure your Will and Enduring Power of Attorney continue to achieve what you intended them to

We recommend you review your estate plan every 12 months or certainly after any of the following circumstances or events:

• you marry, divorce or remarry;
• in the event an attorney or executor dies, becomes bankrupt or loses capacity;
• on the birth of your first child and any subsequent children; and
• as your children approach adulthood.

If you would like more information about estate planning, including Wills, Powers of Attorney, Advance Health Directives and more, please contact one of our team today.