The effects of marriage on a Will in Australia

It is estimated that approximately 50% of people will die without a valid Will in place. This probably comes down to a combination of avoiding thinking about uncomfortable topics and life being too busy.

Not everyone who dies without a Will does so intentionally. Some people actually make the effort to set up a Will but marry after they make the Will, not realising that marriage revokes the Will. There are ways to avoid this depending on which jurisdiction you live in, but this is a discussion for another day.

Dying without a Will is referred to as intestacy. Intestate estates are distributed according to a strict statutory formula that pays no regard to your intentions and varies with your family circumstances and in which state or territory you live when you pass away.

The application of the formula tends to lead to perverse or unjust outcomes and can be entirely avoided by making a Will. Making a Will is empowering – not just for you, but for those you leave behind.

Something I hear regularly from both clients and the public is that they think they do not have anything to gift when they pass. However, almost every adult of working age has superannuation. With some planning the superannuation death benefits (often including some life insurance) can form part of your estate. Even the most basic life insurance cover can easily extend into a substantial sum.

Clients also ask whether a will is worth anything if it can all be overturned anyway. A considered estate plan and clearly-drafted will is difficult to overturn and can be strongly defended by the executors. By leaving a Will you give your loved ones significant certainty. You are able to document who you want dealing with your affairs and to whom you want your estate to be left to and – sometimes more importantly – you ensure that those who should not benefit receive nothing.

If a family member has died without a will or if you have questions about how intestacy might apply to you in your current circumstances, you should call Canberra’s specialist wills and estates lawyers for an obligation-free chat.







Timothy Morton, Director FGD

Article By: Timothy Morton

Director – Estates Lawyer

Tim has considerable experience advising clients in relation to their rights where a Will is involved. He has acted in many family provision claims in both the ACT and NSW where he has represented both plaintiffs and defendants. He fearlessly advances his client’s interests and is pleased to say that none of his family provision cases have had to go to trial.

Tim holds a Master of Laws (Applied Law) majoring in Wills & Estates, he teaches and tutors Wills & Estates at the Australian National University, and he is a member of the ACT Law Society’s Elder Law & Succession Committee.

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