19 Feb 2016

In Western Australia, getting married or divorced after making a Will automatically revokes (invalidates) that Will.

 

Subsequent Marriage

Sections 14 of the Wills Act 1970 (WA) provides that a Will is revoked by the subsequent marriage of the testator (Will-maker), unless it is made in contemplation of marriage. The phrase “in contemplation of marriage” means that the Will is made in the context of “intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at.”[1]

 

Making a Will in contemplation of marriage means that either:

a) there is an express clause in the Will stating that it is made in contemplation of marriage to a specific person; or

b) there is other evidence to show that the Will was made in contemplation of marriage.

 

If there is an express “contemplation of marriage” clause in the Will, then that clause should include the following:

a) the full name of the testator’s partner, fiancé or fiancée; and

b) that the Will is still valid even if that marriage does not occur.

 

If there is an express “contemplation of marriage” clause in the Will, then there must be significant external evidence to establish that the testator made the Will in contemplation of marriage. For example:

a) the wording of the Will, including whether the spouse is described as a fiancé or fiancée;

b) the testator’s discussions with the solicitor;

c) whether the testator made family and friends aware of an intention to marry; and

d) the likelihood of the marriage as at the time the Will was signed.

 

Hoobin v Hoobin [2004]

The deceased married his first wife in 1954 and they divorced in 1990. There were five children of the marriage.

 

The deceased met his partner in 1994 and they commenced a de facto relationship in 1966. The deceased proposed a number of times, but his de facto partner delayed accepting the proposal.

 

The deceased was diagnosed with cancer in January 1999. The deceased made a Will in January 1999, leaving his estate to his de facto partner, to the exclusion of his children. The deceased advised his solicitor that he was in a de facto relationship and thinking about marrying his partner. The deceased was advised that if he intended to marry, then the Will should be made in contemplation of marriage. The deceased instructed that the Will should not be made in contemplation of marriage, because he expected to die shortly. The deceased eventually married his de facto partner in June 2000, a few days before he died.

 

The issue before the Court was whether:

a) the Will was revoked when the deceased married his second wife; or

b) the deceased made his Will in contemplation of marriage to his second wife.

 

The Court emphasised that there is a difference between:

a) making a Will having contemplated marriage; and

b) making a Will in contemplation of a marriage.

 

There must be a relation between the act of making the Will and the state of mind of contemplating a particular marriage. There must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage.

In this instance, the Court found that the deceased’s Will was revoked upon his marriage in June 2000.

 

Subsequent Divorce or Annulment

The law in relation to the effect of ending a marriage (whether by divorce or annulment) on a Will was changed in 2007 by the Wills Amendment Act 2007 (WA). The validity of the Will depends on when the Family Court issued the divorce order or annulment.

 

A divorce order or annulment granted before 9 February 2008 does not revoke a Will.

 

A divorce order or annulment granted on or after 9 February 2008, does revoke a Will unless the Will was made in contemplation of the marriage ending; section 14A into the Wills Act 1970 (WA).

 

Separation from a spouse does not invalidate a Will, because at law the marriage still exists. Rather, a Will is revoked upon the Family Court issuing a Divorce Order or Annulment.

 

Consequences of a Revoked Will

If there is no valid Will at the time of death, then the Estate will be distributed in accordance with the default rules of distribution. These rules are known as the “rules of intestacy” and are contained in section 14 of the Administration Act 1903 (WA).

 

It is sensible to make a new Will when significant personal life events (such as marriage or divorce) occur, to avoid the document becoming invalid or out of date.

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.



[1] Hoobin v Hoobin [2004] NSWSC 705.

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