BE CAREFUL WHAT YOUR WILL DOES—AND DOES NOT—CONTEMPLATE

Section 12 of the Succession Act 2006 (NSW) provides that a will is revoked by marriage unless that will was made in contemplation of marriage.  Practically, a will made in contemplation of marriage usually contains an express statement to that effect.  This was not the case in the recent Supreme Court case, Re Estate Grant, deceased [2018] NSWSC 1031 and the Court needed to determine whether the testator had made his will in contemplation of marriage.

In October 1989 the deceased married his first wife (who had two sons from a previous relationship) and they had twin sons.  The deceased had an extramarital relationship with a co-worker (who became his second wife) and they commenced a de facto relationship in 2012.  The deceased’s divorce from his first wife was finalised in late 2013.  The deceased made a will on about 3 January 2014 that provided for his estate to be split equally between his two biological sons and one of his stepsons, Max (he was estranged from his other stepson).  The deceased was diagnosed with brain cancer in February 2015.  The deceased and his second wife married on 19 September 2015 and he passed away on 14 December 2015 aged 55.  The deceased and his second wife had no children together.

The second wife claimed the deceased’s will was not made in contemplation of marriage and that their September 2015 marriage revoked his January 2014 will.  If successful, that would mean that the deceased died intestate and his second wife would receive his personal effects, a statutory legacy of approximately $450,000 and one half of the remainder of his estate with the other half to be divided between the deceased’s two biological sons.  Max would receive nothing as a stepson of an intestate.

The deceased’s biological sons and Max claimed that the will was made in contemplation of marriage so that if the Court upheld the will they would receive the estate in equal thirds.  The second wife would then receive nothing from the deceased estate. 

The second wife and Max each made a family provision claim in the event that their respective claims regarding the will’s validity failed and they received nothing from the estate as a result.

After examining the facts of the deceased’s relationship with his second wife and the law regarding the phrase “in contemplation of marriage”, the Court held that the will was not made in contemplation of marriage and the deceased’s marriage to his second wife revoked his will.  As a result, the deceased died intestate and his estate was to be divided in accordance with the intestacy rules between the deceased’s second wife and biological sons.  As Max received nothing on an intestacy the Court ordered provision of $750,0000 be made for him from the deceased’s superannuation which the Court designated as part of the deceased’s notional estate.

Although this case had a very particular set of circumstances, it highlights the importance of periodically reassessing your will, particularly where multiple marriages and blended families are at play. Please contact our office if you wish to discuss anything arising out of this article or wish to review your estate planning.

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