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Happily ever after…but is your will valid?

When planning a wedding there are so many things to consider – the cake, the dress, the guest list, your wills… Now that last one is not something that you would see in most wedding planner lists but it is very important.

Recently a family had to make a High Court application to get a will declared valid[1] all due to the fact that the will was made prior to the deceased’s marriage and section 18(1) of the Wills Act 2007 provides that a will is revoked if the will maker marries.

The couple commenced their de facto relationship in 1991 and they each had two children from their previous relationships.  A year later they signed mirror wills leaving their estates to each other .  They married in 1998 but no further wills were made.  The husband died in 2009 and the effect of section 18(1) was that the will made in 1992 was revoked in 1998 when they were married.

There are two exceptions to the revocation of a will by entering a marriage or civil union.  The first is that the will is expressly made in contemplation of a particular marriage or civil union, and that marriage or civil union occurs.  The second is that the circumstances at the time of making the will clearly show that it was made in contemplation of a particular marriage or civil union, and that marriage or civil union occurred.  The second exception requires a court application and evidence must be produced to prove those circumstances, as was the position in this case.

In this couple’s case, the Court concluded that there was sufficient evidence (that primarily being that there were mirror wills which provided for all four of the children) and as the application was supported by all children, the Court determined it was in the interests of justice that the will was not revoked.  However, it could have been a very different outcome if the application was challenged.  Further, there were costs in making the application and a delay in obtaining probate.

All of this could have been avoided if on marriage the couple made new wills or had expressly made their wills in contemplation of the marriage.  Life is constantly changing and therefore we recommend to our clients that they regularly review their wills to ensure that they remain valid, provide for all dependents and accurately reflect how they want their estate distributed.

If you would like to discuss your will or other aspects of estate planning, please contact one of our team.

[1] Newton v Newton [2020] NZHC 3337

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.

For further information

Laura Fischer - Harkness Henry Solicitor

Laura Fischer

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