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June 2010

Wills - Reflecting your current intentions and circumstances

A recent High Court decision has highlighted the importance of a Will reflecting the current circumstances and current intentions of the Will Maker (the person who makes a Will).

In this particular Court decision, the Will Maker was engaged to be married at the time he made his Will, but the date of his marriage had not yet been determined. The Will Maker knew that he had terminal cancer but the evidence was unclear as to whether he knew how long he had to live when he made his Will.

His Will provided, amongst other aspects, for his fiancée to be able to live in his house for two years after his death and then the house property was to be divided equally between his fiancée and his parents. The Will Maker had been asked, when giving instructions for the preparation of his Will, if he was making his Will “in contemplation of marriage” and he had said “No”. He was subsequently advised that if he married the Will he was making (which was not worded to be “in contemplation of marriage”) would automatically be revoked on that marriage taking place.

The Will Maker subsequently married his fiancée but did not make a new Will and died shortly thereafter.

An application was made to the Court for all of the Estate assets to go to the new wife (and for nothing to be left to the parents) on the basis that the Will Maker had died without a Will. It was argued, on behalf of the new wife, that the existing Will was revoked on the marriage taking place in accordance with the provisions of the Wills Act.

In turn, the Will Maker’s parents made an application to the Court on the basis that the Will was still valid as it was made “in contemplation of marriage” (even if those words were not specified in the document).

The High Court considered the surrounding circumstances and concluded that the state of affairs did not “show clearly” that the Will was made in contemplation of the Will Maker’s marriage. Accordingly, the parents did not receive an inheritance notwithstanding that the Will Maker had included them in his Will.

The lesson to be learnt from this sad set of circumstances is to make sure that your Will covers your current circumstances and reflects your current intentions.

If the Will Maker, in this High Court case, had either:

  • made a new Will after his marriage; or
  • had made the existing Will “in contemplation of his intended marriage” –

there would have been no doubt as to his intentions and no Court case would have been required.