Most people understand that the solemnisation of a marriage revokes an existing Will, but few people understand that there are exceptions to the ‘rule’ under section 12(2), (3) and (4) Succession Act 2006 where all of part of the Will is not revoked upon marriage.
- A gift to your intended spouse under the will and he or she survives you and is your legal spouse at the date of your death;
- A power of appointment to your intended spouse (in respect of a trust or company) which would enable property to pass to them and he or she survives you;
- The appointment of an executor or trustee under the Will for your intended spouse, provided your spouse survives you;
- Generally, a Will expressed to have been made in contemplation of marriage; and
- A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned.
It is the last of the exceptions to which this blog is focused.
Why is a Will revoked on marriage?
The rationale for revocation of a Will upon marriage is founded upon the perceived intentions of the objective testator upon marriage, expressed by the Law Reform Commission in 1989: “Marriage represents a fundamental change in a person’s life and the new personal and financial responsibilities acquired on marriage are likely to render inappropriate all or some of the provisions contained in an earlier will. It is therefore likely that upon marriage a testator would wish to revoke an earlier will, if he or she thought about the matter.”
When is a Will made in contemplation of marriage?
When determining whether a person made their Will in contemplation of marriage, the Court will look to all the available evidence, including the document itself (including the language used in it), the file notes and correspondence between the solicitor and the Will Maker, extrinsic evidence such as conversations had by the testator with loved ones and friends as to his/her intentions, and the circumstances and actions of the testator at the time of making the Will.
The case law suggests that it is not necessary to prove:
- That there was necessarily an intention to bring about the marriage;
- That when the Will was made the Testator intended or understood that contemplation of the marriage would preserve the Will from revocation if the marriage took place; and
- That the Will was made because he/she proposed to marry.
It is enough to prove that (on all the evidence) when making the Will there was: “thoughtful observation or consideration of a prospect, or an expectation, of a marriage. Although an expectation of a possibility of marriage in abstract will not suffice.” Dixon J in Steel v Ifrah [2013] VSC 199; 38 VR 186 at [7]
Decisions
You’ve heard the old adage, “every case is different”. This really does apply in cases involving a determination of a Will Maker’s intention when making a Will. The process is made difficult because the Will Maker is not available to give evidence, and rarely do they leave any written explanation of their thoughts and motivations at the time the Will was made.
In Re Estate Grant, deceased [2018] NSWSC 1031 (5 July 2018) at [129] Lindsay J summarised some cases in which the Court had found that the Will had been made in contemplation of a particular marriage:
- A testamentary gift, in favour of a de facto wife described as “my wife” and by reference to the testator’s surname, in a will made shortly before, on the same day, the two were married was a gift in the will expressed to have been made in contemplation of marriage.
- A testator did not make a will in contemplation of marriage because, at the time he made the will, he was not looking beyond an impending hospitalisation from which he did not expect to emerge alive. Despite discussion of marriage in a de facto relationship, at the time he made a will wholly in favour of his “de facto spouse”, so described, the deceased had no current expectation of marriage and, with the benefit of legal advice, he disclaimed an opportunity to make his will explicitly in contemplation of marriage.
- A will was made in contemplation of marriage in the context of a testatrix, having accepted a proposal of marriage, co-operating with her fiancé in each making a will to protect entitlements of their respective children from earlier relationships; and the testatrix subsequently giving instructions for a new will, after marriage, in terms materially similar to her pre-marriage will.
- A will was made in contemplation of marriage by a testator who, although expressly advised at the time of its execution that his impending marriage would revoke it, refused to accept that advice and, following his marriage, made statements (including statements to his wife) to the effect that he adhered to the terms of his will notwithstanding that it was made before his marriage was solemnised.
In the case of Re Estate Grant, the application for probate of the last Will was brought by the executor appointed for the benefit of the deceased’s two natural children and one stepchild from his first marriage. The deceased had given his estate to those ‘sons’ and expressly excluded another stepson from whom he had been estranged for some time. At the time of making the Will, the deceased was in a de facto relationship with a woman who was ultimately to become his wife shortly prior to his death and with whom he had purchased a property. The Will made no provision for her.
The Court found that the deceased had not made the will in contemplation of marriage and by the act of solemnising the marriage, it was revoked. Lindsay J relied on a number of factual matters including: there had been no discussion about marriage with the solicitor who drafted the will on the deceased’s instructions; there was no reference in the Will to the deceased’s future wife; and the Will seemed for all intents and purposes to be driven by the deceased’s wish to disavow his stepson and former wife.
The validity of Wills is an extremely technical and complex area of law. If you are presented with a situation where there is doubt about the validity of a Will call to speak with one of our highly experienced lawyers. Initial, free, no obligation consultations are available.
