First you say “I do”, next you say, “I will…”

Do you know that your will is automatically revoked when you become married? No, me either. But now we both do, thanks to Jon Tidswell of Hamish.Fletcher Lawyers, who very generously allowed me to pick his brains about wills, prenuptial agreements and other lawerly stuff recently:

Making a new will isn’t something that tends to get talked about in amongst the ribbons and cake of wedding planning, but in fact, they deserve at least a little attention! Unless you’ve specifically directed that  your current will is made “in contemplation of marriage”, the will is automatically revoked once you sign the marriage licence, and should you die without making a new will, you are considered to be intestate – without any will.

This is especially important if either partner has children from a previous relationship. Without specific instruction, your assets are distributed by rote among your next of kin, according to a strictly prescribed formula – which is not necessarily how you would have chosen.

As much as we dislike dealing with the idea that we’re mortal, and that someone you love might die, it’s far more unpleasant to deal with the reality that someone you love has left a horrible, expensive legal tangle for you to sort out.

It’s not even that difficult – most lawyers will have a standard questionnaire which covers most aspects of your instructions – it may take 30 minutes to provide the relevant information, and perhaps another 30 for your lawyer to talk through your instructions prior to preparing your will. Many lawyers offer free will-making as a service to their clients, so if you already have a lawyer who deals with your property or other matters, all you need to invest is your time!

Prenuptial agreements are not so simple – by their very nature, they tend to be complicated agreements, without a standard ‘one size fits most’ formula. Add to that, both parties of the agreement must be advised separately by their own individual lawyer about the terms of the agreement. This requires several hours of work by multiple lawyers, so the cost can run into the thousands of dollars.  In spite of that, if you think you require a prenuptial agreement – again, particularly where there are children from a previous relationship, or significant individual assets, then don’t skimp on your legal advice over this! You may have heard that all you need is to write down your informal agreement, and sign it – that is absolutely not true. If you need a prenuptial agreement, you require a properly prepared document that can stand up to robust scrutiny in court – after all, by the time a pre-nup comes into effect, you’re not likely to be amicably negotiating with each other! If your agreement is insufficiently prepared, or if inadequate legal counsel was provided to either party prior to the signing, then a judge will simply set it aside, and proceed as if there is no existing agreement. In a nutshell, you should have it done properly, or not at all.

In the best of all possible universes, you wouldn’t need to worry about either wills or prenuptial agreements. But if you’re living in the real world, and want to make sure that those you love are well protected, should the worst happen, then have a chat to your lawyer, and make sure you’re on track to live happily ever after!


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