Contemplating tying the knot?

Introduction

Naturally, it is not unusual that willmakers will seek to benefit persons they intend to marry under their will. However, amidst guest lists, venues, dance lessons, cakes and flowers, making an appointment to speak with your solicitor about changing your will is not normally contemplated by today’s bride and groom when formulating their wedding plan to-do list.

How will marriage effect my will?

All willmakers need to be mindful however that under section 13 of the Wills Act 1997 (‘the Act’), marriage results in automatic revocation of a will. This means the will becomes invalid and that the willmaker will die ‘intestate,’ that is, their estate will be distributed in accordance with the laws of intestacy, as set out in the Administration and Probate Act 1958 (Vic). While this can be beneficial in some cases, in others, it can leave assets in the hands of estranged, irresponsible or wealthy relatives.

The following provisions will however survive under section 13(2) of the Act.

• a disposition (i.e. a gift) made to a person to whom the willmaker is married at the time of their death;
• the appointment as executor, trustee, advisory trustee or guardian of the person to whom the willmaker is married at the time of their death; or
• a power to exercise, by will, a power of appointment.

 
Exception to the rule

There is an exception where the will is made in contemplation of marriage under section 13(3) of the Act and such contemplation no longer needs to be expressed clearly in the will. All that is required is a thoughtful observation or consideration of a prospect, or an expectation, of marriage. This is in stark contrast to the former section 16(2)(b) of the Wills Act 1958 (Vic) (Former Act) which provided that an express intention was necessary. Under the Former Act, the will could only survive if its terms, or those terms in conjunction with the circumstances, showed that the willmaker had in contemplation that he would marry and intended the disposition to take effect in that event.

Steel v Ifrah

The recent case of Steel v Ifrah [2013] VSC 199 provides an excellent illustration of how ‘in contemplation of marriage’ will be interpreted by the court. Here, the deceased executed her will six months before her planned marriage to her partner. She provided for him in the will and left all her real property to three of her children and a grandchild. Her solicitor was unaware of her intention to marry her partner at the time the will was made and executed. She did not mention it and he did not make enquiries. She died six months after her marriage. While her son/executor (the plaintiff) argued the will was not revoked as it was ‘made in contemplation of marriage’ under section 13(3) of the Act, her husband (the defendant) argued her will was revoked by virtue of 13(1) of the Act and she subsequently died interstate.

Dixon J held that ‘it must appear probably that the testator gave thoughtful observation of consideration of a prospect, or an expectation, of a marriage in the process of making the will’ and that ‘a mere consciousness of a possibility of marriage in the future’ was insufficient.

He took the view that ‘contemplation of marriage’ did not extend to contemplation of the relation between a marriage and the validity of a will or contemplation of the continuing validity of a will after marriage. In essence, the willmaker need not be conscious of the effect a marriage may have on former wills and all circumstances must be looked at. Here, some of the circumstances considered were that:

• her six year relationship with her partner was committed and long-term;
• her partner had proposed and she had accepted;
• she had told relatives and close friends of her plans to marry;
• she had purchased wedding dresses; and
• she had informed her solicitor that she had a divorce application on foot.

 
Importantly, silence about her contemplated marriage when giving instructions to her solicitor to prepare the will was not determinative. Her plan to marry was held to be the main reason she had decided to make a new will and thereby distribute her estate in a way that would protect her children’s entitlement to her real property. It was also significant that her partner had made a complementary will, to achieve a similar result for his children.

When else and how often should I update my will?

It is recommended that your will be reviewed every three to five years to ensure it coincides with your current wishes, particular if your personal or financial circumstances have changed, or are expected to. For example,

• you separate or get divorce (in Victoria, your former spouse is treated as having died before you when your assets are distributed);
• you enter into a de-facto relationship;
• you have children, including foster or adopted children;
• you become a grandparent;
• a major event occurs in  your family (i.e. diagnosis of degenerative or terminal illness);
• a major event occurs which affects your assets;
• you want to ensure particular beneficiaries (i.e. those suffering an intellectual disability, who are bankrupt, spendthrift) benefit under the will as intended;
• the social security or tax laws change or the will as drafted does not take into account taxation law;
• you have decided to deal with property other than in accordance with your will such as transferring it to a trust;
• you establish a family trust or new business venture;
• a beneficiary under your will dies;
• your executor dies or becomes unable to act in that capacity due to illness;
• you or one of your beneficiaries change their name or residency status to other than Australia; or
• you destroy your Will.

 
Willmakers who have provided for testamentary trusts in particular need to be aware of when they need to revise a will. For example, if a beneficiary has an unstable marital relationship, it may be wise to appoint an independent third party as a trustee of that beneficiaries’ trust.

Conclusion

While Steel v Ifrah demonstrates that a will, although silent on its terms regarding an anticipated marriage, could survive the revocation rule, it remains a good idea to inform your solicitor of your marriage plans (or any other changes to your personal or financial circumstances) so that they may adapt or update your will to safeguard against potential legal challenges, particularly if the surrounding circumstances do not support those plans.

If you have any queries regarding this article please contact Andrew Cox of our office on 03 9614 7707.

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