Circumstances That Can Nullify Your Will.
Even if you've carefully prepared your will, certain changes in your life can unexpectedly make it invalid. The following scenario explains how this can occur…
Max and Fiona had both been married before, both with adult children from previous marriages. They had been together for several years but had never bothered to get married. They owned their family home and beach bach together, but in different shares, reflecting the different financial contributions that each of them had made to these assets. Max also had some savings from his previous marriage and Fiona has a large KiwiSaver as she had been making 10% contributions for the last ten years, saving hard for retirement.
Max got on well with his two daughters, but unfortunately Fiona didn’t get on at all with one of her children. Her middle son had made some questionable lifestyle choices and had slowly distanced himself over time from the family. He had made it clear that he wanted nothing to do with Fiona, or his siblings for that matter. While Fiona found this upsetting, she did amend her will so that she left a life interest to Max in her share in the house and bach, with her KiwiSaver going to her other two children. They would also receive Fiona’s share in the house and bach when Max died, if Fiona died first. On the advice of her lawyer, she had left her estranged son 10% of her total assets to try and prevent him making any claim against her estate.
Last year, on a whim, Max and Fiona decided to get married.
They were going to Rarotonga for a holiday and Max asked Fiona if she would like to get married while they were there. She said yes and they organised the marriage certificate and a very low-key affair with only the witnesses provided by the wedding planner. They decided that they had been together long enough that they were the only ones who needed to be there, and they would tell everyone when they got home. They were secretly excited to be in their 60’s and eloping. They had a wonderful time in Rarotonga and then a party with friends and family a few weeks after their marriage, surprising them by telling them that they had already married while on holiday.
After only six weeks of wedded bliss, Fiona tragically had a terrible accident – she was hit on her bike while riding to the gym early one morning and sustained a head injury, from which she never recovered. Max had been appointed her attorney under an enduring power of attorney some time ago and while he had to consult with two of her three children, he was able to make the difficult decision to switch off Fiona’s life support. He knew she would not have wanted to live with the brain damage she had sustained, and her heart would not keep going without the life support.
A few weeks later Max went to the lawyer’s office to attend to Fiona’s estate. He knew that he had been appointed executor of her will together with the lawyer. However, when Max told their lawyer that they had recently been married in Rarotonga, she told him that that changed a lot of things. In particular, the will that Fiona had carefully crafted was now null and void. Marriage is one of the few things that invalidates a current will.
As Fiona hadn’t updated her will after getting married, or made a will in contemplation of marriage, it meant she didn’t have a will.
That meant that her estate would be dealt with under the Administration Act. Max would receive the first $155,000 and 1/3 of the balance, outright. The remaining 2/3 would be divided equally between her three children, including her estranged son. This was vastly different to what Fiona had wanted. It also meant that, even though Max was receiving a portion of her estate, as Max did not have a life interest in their bach and the family home, he had to sell the bach to pay Fiona’s children out. It also meant that Fiona’s estranged son received a much larger portion of the estate than what Fiona had wanted him to.
It is so important to review your will whenever your personal circumstances change, especially when some changes in circumstances mean that your will is invalid, and your wishes won’t be adhered to.
If you feel you could use some specialist advice, don’t hesitate to contact the Trusts & Wealth Team.
