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Your will could expire after you marry again

Several events that occur during many of our lives should be considered reminders for us to review our estate planning documents.

Three such events are marriage, births and the transfer of assets during one’s lifetime, among others.

Newlyweds rarely think about estate planning. Often, it is not until they start a family that they seriously think about providing for others in the event that something untoward were to happen to them.

Conversely, couples marrying for a second time may consider their estate planning sooner as they wish to ensure that their respective children and new spouse are adequately provided for.

Bermuda’s laws provide that a marriage can revoke a will that is in place unless the will was made in contemplation of that particular marriage.

Where someone has a will and is planning to get married, they should ensure that their will is updated either before their marriage (and includes the appropriate provisions regarding their upcoming marriage), or soon after their marriage.

Let’s consider the case of Jack and Jill (not their real names). Jack made a will in 2009, soon after the death of his first wife, leaving his entire estate to his children and grandchildren.

Three years later, Jack married his new companion, Jill, and after five years of blissful marriage, Jack passed away. Unfortunately, Jack had not updated his 2009 will because he believed that it was still valid and that it provided for his children and grandchildren.

Furthermore, he and Jill had an understanding that they would not provide for each other on their deaths, as they each had sufficient assets of their own and did not need to inherit from their spouse.

Sadly, because Jack did not update his will after his marriage to Jill, his 2009 will was revoked on his marriage to her and was considered null and void on his death.

Instead, Jill — as the surviving spouse — and Jack’s children were considered the beneficiaries of his estate under Bermuda’s Succession Act 1974, leaving out his grandchildren.

Individuals should also review their estate planning on the birth of a family member, such as a child, grandchild, niece or nephew.

Let me share a story about Janet and Jacob (not their real names). After the birth of their third child, Jacob had a health scare that caused the couple to put their estate planning affairs in order.

Both executed wills naming each other as the primary beneficiary of their respective estates, with their three children named in their wills as the contingent beneficiaries.

Two years later, Janet and Jacob had their fourth child. Unfortunately, neither of them updated their wills to include the new arrival.

Fast-forward to this year, and the children of Janet and Jacob visit a private client lawyer. Sadly, their mother passed away last year and their father only two months ago, but never having updated their wills.

The children seek advice about how they are to inherit from their parents’ estates. They are advised that only the three oldest children benefit as they are named in the wills, but the youngest child is left out because his name is not mentioned.

Had Janet and Jacob not specifically named their children in their wills and instead identified “my children” as their contingent beneficiaries, the fourth child would have benefited as well.

Luckily, because of the love and affection the older siblings had towards their youngest sibling, they made sure that he benefited equally.

However, in some circumstances, it is best to specifically name a child in a will as a parent may only wish for certain children to inherit from their estate. Legal advice should be sought as to why this may or may not be beneficial for an individual’s estate planning.

Another key event for estate planning is the gifting or sale of an asset during one’s lifetime.

It is common for individuals to give away jewellery or antiques to family members during their lifetime that they may have specifically mentioned in their will.

If you have done so, please alleviate the stress of your executors having to track down those assets mentioned in your will that you disposed of during your lifetime.

More importantly, you don’t want to cause any unnecessary rifts within your family, who may believe that someone has stolen one of your possessions mentioned in your will, when in reality you had already gifted or sold the asset during your lifetime.

Preparing a will does not need to be a laborious task. Take time to consider what you have and what you would like to happen on your death, even if it means talking frankly to your family on what you plan to do.

If you are in the midst of one of the events described in this column, and you haven’t prepared a will or updated it in some time, it may be time for you to seek professional legal advice.

That way, you can be sure that your wishes will be followed and you can rest in peace.

Caljonah Smith is a senior associate in the private client and trusts department at Appleby. A copy of this column is available on the firm’s website at www.applebyglobal.com. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult a lawyer.

Caljonah Smith, senior associate in the private client and trusts department at Appleby (Photograph supplied)

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Published October 07, 2021 at 7:35 am (Updated October 07, 2021 at 8:40 am)

Your will could expire after you marry again

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