26/06/2014

Subsequent marriage revokes a current Will.  This is a time-honoured rule because in the good old days it was considered unfair for your new spouse to find out they weren't to receive any of their deceased spouse's estate simply because the spouse forgot to update their Will after the marriage.

Those good old days weren't as complicated as today's social and economic order.  There are good reasons to believe that marriage should no longer revoke a Will because most people today would realise that they should renew their Will or at least re-consider it once they re-marry.  As well, the whole process of renewing a Will is a lot easier today than it was in the 'quill & ink' days.

The common view is that considering marriage when preparing your Will is usually a concern only for those who are just about to tie the knot or in long term de facto relationships.  Often bequests may be made to the future spouse and steps can be taken to ensure the Will is not automatically revoked the moment they say "I do".  The Will maker can include a declaration that the Will has been made in contemplation of that marriage.

That same common view is that those couples who are already married may not think that they need to consider future marriages in their Will and the effect such a later marriage may have on their Will.  

But married or not, the use of a simple statement in anyone's Will can ensure that a carefully drafted Will with specific wishes, directions and bequests is not automatically revoked should they ever remarry.

Consider the possible scenario where Homer and Marge make their Wills distributing their estates to each other and in the alternative their kids, with certain personal items to go to each child.  Homer then passes away and Marge meets someone else.  Her subsequent marriage to this new suitor automatically revokes the Will she had previously made.  

Marge then unfortunately passes away as well and is then taken to have died intestate.  This leads to headaches around the administration of her estate and Marge's wish for certain personal items to go to her children has now come undone along with any other directions she had included in her previous Will.

This resulting nightmare can and should be addressed at the initial stages of drafting of her Will.

Such problems can be avoided by including a simple declaration that Marge's Will is made in contemplation of marriage generally and is not to be revoked by a subsequent marriage.

If the Court is satisfied that a testator turned his or her mind sufficiently to the matter to have intended that the Will should survive a particular marriage or marriage generally, it is likely to find the testator's intention should not be defeated by the general rule that marriage revokes the Will, in which case the Will may still be found to be a valid Will.  Marge’s original Will would be taken to have survived her new marriage and her estate would then be distributed to her children as the surviving beneficiaries.  

Obviously the best course of action is to always ensure your Will is updated after any significant life events (such as death of a partner, marriage or winning the lottery).  However, by simply including this general statement in a current Will, it may save the kids from having to battle it out with a new partner and may preserve the intentions set out in that original Will.

For further information, please contact Townsends Business & Corporate Lawyers on (02) 8296 6222.