In Contemplation of Marriage
The Succession Act 1981 provides that a Will is revoked upon the marriage of the Willmaker. There are, however, two main exceptions to the rule that a Will is revoked upon marriage. The first is that any gift made specifically to your spouse will not be revoked. Secondly, if you appointed your spouse to be the Executor of your Will, that appointment will not be revoked.
Because of this general rule that a Will is revoked upon marriage, there is a risk that any gifts you have made to any children, family members or friends will fail. If you have not appointed your spouse to be your Executor, your estate may be administered by The Public Trustee of Queensland. Further, if you have not made provision for your spouse, your Will is likely to be distributed according to the intestacy rules, which are usually different to what people wish to achieve in their Wills.
How Do You Prevent Revocation of Your Will?
The Succession Act 1981 provides that where a Will is made in contemplation of marriage, a Will is not revoked by the marriage of the Willmaker. There are a number of ways a testator can make a Will in contemplation of marriage.
First, your Will does not need to specify that you are contemplating marriage. However, if you were to make a Will prior to marriage, and die before updating your Will, it would be up to the Court to determine whether you did, in fact, contemplate getting married to your spouse. The Court will generally only make this decision by reference to the terms of your Will and the evidence your Executor can produce to prove you genuinely contemplated your marriage to that person.
The Courts have been reluctant to find that a Will was made in contemplation of marriage without clear evidence in the Will. The leading cases in this area have required the Willmaker refer to their fiancé as their husband or wife, as the case may be, before the marriage has taken place. Referring to your spouse as your fiancé in a pre-marriage Will has not been sufficient to prove a Will was made in contemplation of marriage.
Secondly, a Willmaker can include a particular clause in their Will which provides that the Will is made in contemplation of their marriage to a particular person. This will prevent your Will from being revoked upon your marriage.
Finally, the legislation provides that a Will is not revoked upon the marriage of the Willmaker if the Will is expressed to be made in contemplation of marriage generally. This type of clause does not require a Willmaker to be contemplating any particular marriage, but will prevent the Will from being revoked upon the marriage of the Willmaker.
The inherent risk in drafting a Will in contemplation of marriage generally is that the Will is not updated after marriage at a later date. In the worst of cases, an earlier Will may make no provision of your spouse upon your death.
In these circumstances, your current spouse would have no choice but to make an application to the Court for further and better provision from your estate. This is a long and expensive process that usually substantially depletes the assets of the estate.
If you and your partner are considering marriage, we recommend you start the process of updating your estate planning as early as possible. By planning in advance, you can make informed decisions about how to distribute your estate as effectively as possible.