Do Marriage and Divorce revoke your Will?

Getting married? Does it affect your Will?

Usually, marriage revokes your Will. Marriage cancels, nullifies and destroys your current Will. Therefore, if you die as you leave the church you die without a valid Will. You are intestate.

In all Australian States and Territories, marriage revokes your current Will.

Contemplation of Marriage

There is one exemption that marriage revokes your Will. If you use special wording called a ‘Contemplation of Marriage’ clause then your Will remains valid.

But you have to specifically name the person you are going to marry. Legal Consolidated drafts your Will so your Will remains valid whether you get married to the named person or not.

Example of a Will without a Contemplation of Marriage Clause

John and Jenny have been living together in a de facto relationship since the 1960s. “Free love does not need a bit of paper,” they tell their children and grandchildren.

They did their Wills many years ago.

John takes Jenny to one of the most romantic places in Australia. The Wagga Wagga Botanic Gardens. Overcome with emotion they get married on the spot.

On the way home, John is killed in a car accident. Jenny is ok.

Jenny is shocked to hear that John’s Will is invalid. This is because he got married earlier that day. Because of asset protection, all their assets are in John’s name.

The intestacy laws mean Jenny only gets about one-third of the assets. The other one third goes to their children and the many Illegitimate children John is responsible for.

How a Contemplation of Marriage Clause in a Will works

When John and Jenny build a Legal Consolidated Will they are always asked this question:

“Do you know the name of the person you may marry?”

Even if John and Jenny think that they will never get married, they should still answer ‘yes’ to these questions. And put in their names.

With a Contemplation of Marriage clause in your Will:

• if you never get married, that is fine, your Wills remain valid
• if you do end up getting married to each other, that is fine, your Wills remain valid

So in that instance, if John is killed after he got married to Jenny then his Will is still valid.

 

 

Contemplation of Marriage Clauses are strict

The drafting of a Contemplation of Marriage Clause has to be exact.

For example, in Western Australia, a Will is void if the marriage never takes place. This is unless the wording carefully overrides that law.

In SA and the ACT, there is a strict requirement in the law. That is that the contemplation of marriage be expressly stated in the Will. And that it does not extend as it may do in other states, to the contemplation of marriage generally.

Legal Consolidated is a national law firm. Our Wills comply with all States and Territories.

Australian laws on how marriage affects your Will

Each State has similar rules on how marriage revokes your current Will:

• New South Wales: section 12 Succession Act 2006 (NSW)
• Victoria: section 13 Wills Act 1997 (VIC)
• Queensland: section 14 Succession Act 1981 (QLD)
• Western Australia: section 14 Wills Act 1970 (WA)
• South Australia: section 20 Wills Act 1936 (SA)
• Tasmania: section 16 Wills Act 2008 (TAS)
• Northern Territory: section 14 Wills Act (NT)
• ACT: section 20 Wills Act 1968 (ACT) – revoking the Will makers’ s Will via marriage, civil union and civil partnership (regardless of gender)

“Valid” marriage vs Contemplation of Marriage clause

Only a ‘valid’ marriage revokes your old Will. A ‘marriage’ is valid if it complies with the Marriage Act 1961 (Cth). This Commonwealth law applies to all Australian State and Territories.

See section 88D Marriage Act 1961. It sets out the rules of engagement on the validity of a marriage. This includes the circumstances, consents, age, when and where solemnised.

Do de facto and civil partnerships revoke your Will?

Marriage and divorce nullify Wills. But the effect on a Will as to when you start or finish a de facto relationship is uncertain. Do not take the risk. Telephone us for free advice on updating your Wills. You can update your Legal Consolidated Wills and POAs as often as you wish. This is for free. So the safer course of action is to just update your Will for free. This is if you enter into a de facto relationship. Or if you end a de facto relationship.

See also:

• Queensland and the ACT: Entering into a civil partnership, ‘civil union’ (ACT) or de facto relationship? These revoke your current Will.
• Tasmania:  Entering into a registered ‘Deed of Relationship’? It revokes your old Will.
• Blyth v Wilken [2015] WASC 486.

De factos and your Will – Blyth v Wilken

Consider Blyth v Wilken [2015] WASC 486.

• Wayne Scott and Ms Murray enter into a de facto relationship.
• Wayne makes a Will.
• Wayne and Ms Murray break up. They are no longer in a de facto relationship.
• Wayne fails to update his Will.
• Wayne dies.
• Wayne’s Will leaves most of his estate to ‘my de facto wife Kathrine May Murray’.

The Court states that Ms Murray does not get anything under the Will. This is because she and Mr Scott had ceased to be de facto spouses. Master Sanderson stated ‘The deceased bequeathed the property to Ms Murray because she was his de facto wife. Once that ceased to be the case it seems to me the intended disposition should fall away’.

But the decision is ambiguous. Did the Court say that a de facto relationship ending revokes the Will? Perhaps. But the wording ‘my de facto wife Kathrine May Murray’ defines the person as a ‘de facto’.

What if Ms Murray had not been referred to as ‘my de facto wife’? What if she is just named in the Will? Perhaps she would have still got the gift.

The law is uncertain. Make a new Will.

My wife is cheating on me. Do I update my Will now or after the divorce?

Q: When is a good time to renew the Will? When the client separates? Or after one year but is not legally separated yet and is still sorting out their financial separation and children etc?

A: Catch your spouse in bed with someone else? That night you update your Will. You do not wait for the property settlement. You don’t wait for the divorce. You do not wait for 12 months to pass since you separated.

But divorce invalidates the Will?

Yes, divorce invalidates the Will. But just put a Contemplation of Divorce clause in your Will.

As you build your new Will on our website one of the questions we ask is “Are you contemplating Divorce”. If you are separating you tick yes to that question. You put in your spouse’s name. Now if you divorce your Will remains valid. And if you never actually get a divorce, then your Will is still valid.

 

Minors getting married can make a valid Will in Australia

Children under 18 years of age cannot make a Will. But there is an exception. This is where the minor makes a Will in contemplation of marriage.

• Like all Contemplation of Marriage clauses, you have to name the lucky person you may marry.
• A standard Contemplation of Marriage works so that the Will is valid whether you marry or not.
• But with a minor’s Contemplation of Marriage, the Will is not valid until the child actually marries the person.

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