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A Will in contemplation of marriage

December 2019

“A Will in contemplation of marriage”

Generally, a valid Will is revoked (cancelled) if the will-maker marries or enters into a civil union. A Will expressed to be in contemplation of a particular marriage or civil union is not revoked by the solemnisation of that marriage or entry into that civil union, if the will-maker records expressly in his or her testamentary document that the Will is made “in contemplation of marriage”.

 

In a recent High Court decision, the deceased had signed a Will that made no reference to being “in contemplation of marriage”. Two days later he and his fiancée sent out wedding invitations. Six weeks later they married.

 

Following his death his (now) widow applied for Letters of Administration on the basis that at the time of his death he had no Will and accordingly she was entitled to receive (in accordance with the provisions of the Administration Act) the whole of the Estate on an intestacy. The deceased had a biological daughter who had been adopted out so was not entitled to receive any share of her father’s Estate on an intestacy. At the time that the deceased made his Will he had terminal cancer. The daughter contended that with the brief time between when the Will was made and the invitation to the wedding was sent (as well as the reasonably short time until the actual wedding) his Will was, in fact, made “in contemplation of marriage” even though the Will did not expressly say it.  Her case then argued that as there was a last Will for which Probate could be granted then those named in that Will should take as beneficiaries.

 

The Court held that the daughter’s case was a reasonably arguable case and set aside the grant of Letters of Administration made in favour of the widow. Each side were ordered to file further evidence for a subsequent trial.

 

In summary, if you are intending to marry or enter into a civil union you should make a Will in contemplation of that marriage or civil union. Otherwise, at the time of the ceremony you will effectively have no Will.