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Lawyer highlights ‘unintended consequences’ on SSM estate planning

A succession lawyer has warned that the right for same-sex couples to legally marry could have a substantial impact on their estate planning.

user iconEmma Musgrave 18 January 2018 The Bar
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Mills Oakley special counsel Troy Palmer has voiced concerns that same-sex marriage could have “unintended consequences” for the couples’ estate planning.

Mr Palmer explained that “marriage causes any will made prior to the marriage by the testator to be revoked.

“All Australian states and territories maintain legislative provisions to this effect. As a result, the situation often arises where a will made prior to marriage is inadvertently revoked as a result of the marriage.


“If a new will is not created post marriage, the person will die intestate.”

With this month seeing many same-sex couples tie the knot, Mr Palmer highlighted the need for those who are considering making their union legally recognised as married to examine the legal impact it will have on their estate planning.

“Among the excitement of the passing of the same-sex marriage bill, it is important that same-sex partners who intend to marry contemplate the impact on the operation of their current will and potentially powers of attorney,” Mr Palmer said.

“Consequently, those intending to wed should seek legal advice to certify that their wills and powers of attorney maintain their validity and continue to operate in the manner that they were intended to.”

One exception to the revocation of a will upon marriage is where the testator made the original will in contemplation of marriage, Mr Palmer noted.

However, due to the previous political uncertainty regarding same-sex marriage, it is unlikely that same-sex partners would have contemplated marriage when making their respective wills, he said.

“Therefore, it is unlikely they will be able to rely on this exception and is probable that their wills will be revoked.

“It should also be noted that marriage has an impact on the validity of an enduring power of attorney in Queensland.

“However, this provision is unique to Queensland and depends on who is appointed as an attorney and is not shared by the other seven states and territories.”

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