I Wrote My Will Before Getting Married, Do I Have to Change it?

On the day someone gets married, the content of their will is often, quite understandably, the furthest thing from their mind. However, as Australia’s population continues to age and the average age of marriage in Australia continues to creep upward, there are increasing numbers of Australians who at the time of their marriage have already written a valid will. However, there is lack of awareness as to the effect the act of marriage can have on the existing wills of the married couple.

How Does Marriage Affect My Will?

Pursuant to section 12 of the Succession Act 2006 (NSW), a testator’s (will-maker’s) will is revoked by the act of marriage. This means that even if you had a valid will before being married, the act of marriage means it is as if the will had not been written. If you were to pass away soon after your marriage without writing a new will, you would likely be deemed to have died intestate. This means your estate will be dealt with in accordance with the order of intestacy. If you have no children, or you have children but the other parent is your spouse, your spouse will be entitled to the entirety of your estate. If you have children from a previous relationship your new spouse is entitled to your personal effects, a statutory legacy of $350,000 and half of the remainder of the estate, with the other half to be split between your children.

Are There Any Exceptions?

There are several exceptions to revocation noted in section 12 of the Succession Act 2006 (NSW) including two categories of will.

The first of these categories are wills made in contemplation of a particular marriage. Such wills are not revoked by marriage, whether that contemplation is expressed in the will or not. A particular marriage was noted in Re ESTATE GRANT, (dec’d) [2018] NSWSC 1031 as meaning a marriage which is a ‘future prospect’ at the time the will is made and which involve a particular person. The second category are wills made in contemplation of marriage generally. Such wills are revoked by marriage unless expressed to be made in contemplation of marriage. The phrase ‘a will made in contemplation of …’ in these categories suggests a requirement that there should be a more definite state of mind than ‘consciousness of the possibility’ of a marriage (Hoobin v Hoobin [2004] NSWSC 705) and more akin to ‘thoughtful consideration of a prospect, or an expectation, of marriage’ (Steel v Ifrah [2013] VSC 199).

The other exceptions set out in section 12 of the Succession Act 2006 (NSW) do not concern types of wills, but rather their content. Dispositions to the person to whom the testator is married at the time of their death are not revoked by marriage. Therefore, a gift willed to a person who then marries the testator will remain valid notwithstanding their marriage. Furthermore, an appointment of the person to whom the testator is married at the time of their death as executor, trustee, advisory trustee or guardian is not revoked by marriage. If a testator appoints a person who they later marry as the executor of their will, this appointment will also remain notwithstanding the marriage.

Can I Revive My Will?

Yes, it is possible to revive your will. Where a will has been revoked by the marriage of the testator, it can be revived by re-execution or by execution of a will showing an intention to revive the will. Wills which have been revoked and then revived will be taken to be executed on the day of their revival.

Can’t I Simply Divorce My Partner?

The Family Court will not finalise your divorce unless you have been separated from your partner for at least 12 months. If during this time you were to pass away, your will would not be revoked. It is, therefore, advisable to update the terms of your will as soon as possible following separation.

Once finalised, divorce will revoke beneficial dispositions to your former partner and also their appointment as an executor, trustee, advisory trustee or guardian unless a contrary intention is expressed in your will. However, it will not revoke the appointment of your former partner as trustee for property for the benefit of beneficiaries which include your former spouse’s children. It also would not prevent your former partner from bringing a family provision claim.

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