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When a will is revoked by a new marriage

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Your father needs to be informed that the Will he made when married to your mother has been revoked by his subsequent marriages

My father has been married a couple of times and is currently engaged. He hasn’t changed his Will since my mother passed and is not getting any younger! I dread having to look after his affairs when he is no longer around. I can imagine ex family members coming out of the woodwork wanting a piece of the action!

Your father needs to be informed that the Will he made when married to your mother has been revoked by his subsequent marriages.

This means that, if your father does not make a new Will before he dies, he will be referred to as having died ‘intestate’. Intestate refers to a person who dies and does not leave a Will, or leaves a Will but does not dispose effectively by Will with all or part of his property. When a person dies intestate their Estate will be distributed in accordance to the laws of intestacy. To avoid this situation your father needs to seek urgent legal advice for the drafting of a new Will, to reflect his current living arrangements and to make sure that his property is distributed the way that he wants it to be distributed.

As your father is engaged, he has the ability to make a new Will in contemplation of this marriage which will not be revoked by the new marriage.

Another important reason that your father needs to have an expert Wills & Estates lawyer draft his new Will, is to minimise the potential of family provision claims being made on his Estate.

A family provision claim is a claim made by an eligible person on your father’s Estate that they should receive a share or a larger share of the Estate to allow for their proper maintenance, education and advancement in life.

In your father’s situation he needs to be aware that an eligible person includes:

  • A person with whom he was living in a de facto relationship with at the time of his death. This could include your father’s fiance, depending on the factual circumstances;
  • Any of his children;
  • His former wives;
  • Any person, such as children of his former wives, who was at any time wholly or partly dependent on your father and a member of your father’s household.
  • Any person living in a close personal relationship with your father at the time of his death. A close personal relationship is a relationship, other than a marriage or de facto relationship, between two adult persons who are living together, one or each of whom provides the other with domestic support and personal care.

As you can see from the above list of eligible persons chances are quite high that ex family members will make a family provision claim on your father’s Estate. The best way to minimise this risk is to ensure that your father has a valid and expertly drafted Will in place.

Graeme Heckenberg is an expert Wills and Estate lawyer.

Call today for a an appointment closer to home on 9221 0341

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