Steel v Ifrah [2013] VSC 199

The Victorian Supreme Court was asked to consider whether the deceased’s Will was revoked as a consequence of her subsequent  marriage.

The deceased prepared her Will in March 2010 and married in October 2010. Pursuant to section 13 of the Wills Act 1997 (Vic) a Will is revoked by the marriage of the Willmaker unless the Will is made in contemplation of that marriage (whether that contemplation is expressed in the Will or not).

The deceased’s Will did not express that it was in contemplation of marriage. The Victorian Supreme Court was tasked by the deceased’s son to decide whether the Will ought to be revoked.

At the time she provided instructions to her solicitor to prepare her Will, the deceased was engaged to her partner and had set a date for her wedding. She did not however inform the solicitor of the impending wedding date and it was found that the solicitor had failed to make appropriate enquires.

The Court considered the meaning of “contemplation of marriage” and the policy behind the legislation, that marriage should revoke a Will. The Court held that based on the language of the legislation the term “contemplation” was a state of mind. Accordingly, it must appear that the Willmaker gave thoughtful consideration to the prospect or expectation of marriage to a particular person when preparing her Will, as it is commonly understood that marriage is an event which affects a Willmaker’s testamentary wishes.

To determine the deceased’s state of mind the Court considered a range of evidence including, the nature and length of the deceased’s relationship with her partner, her instructions to prepare a new Will, her discussions with friends about amending her Will, the circumstances surrounding her marriage and planning of her wedding and the provision left in her Will for her soon to be husband.

There was evidence that from the time of her engagement, the deceased had an increased desire to create a new Will to protect the entitlements of both her children and her partner’s children.Additionally, she had spoken to her partner about amending her Will as a result of their impending marriage which she had not mentioned prior to their engagement.

Whilst the deceased discussed her relationship with her solicitor she did not reveal their plans to marry. The Court found that a prudent solicitor ought to have inquired to that fact and advised the deceased as to the effect the marriage would have upon the validity of her Will. It was not for the deceased to know that this information was important and relevant.

Another key factor which the Court took into consideration was that the deceased had been separated from her previous husband for many years and was in the process of finalising her divorce in order to marry her new partner. The deceased’s solicitor knew of this and again the Court found that the solicitor ought to have made enquires with the deceased about her relationship and any possible marriage.

On the weight of evidence, the Court found that the deceased had contemplated her upcoming marriage when preparing her Will and accordingly the Will was not to be revoked.

Comment: If you have married since the preparation of your last Will you may have also unwittingly revoked your Will. It is therefore possible that your estate will not be distributed in accordance with your testamentary wishes. Likewise, if you are planning to marry, it is important that you have your Will reviewed prior to the marriage.

New South Wales, Queensland and Tasmania have similar legislation to the Victorian Wills Act in that it is not a requirement for the contemplation of marriage to be expressed in the Will as evidence of the Willmaker’s state of mind can be relied upon to avoid marriage revoking the Will.

The position in South Australia, the Northern Territory and the Australia Capital Territory is slightly different as the contemplation of marriage must be clearly expressed in the Will. In these jurisdictions an application may be made to the Supreme Court for rectification to avoid revocation of the Will.

For example, in the South Australian case of In the Estate of Dawes [2011] SASA 236 the deceased was suffering from a terminal illness. He prepared his own Will which did not include a contemplation of marriage clause and married the following day. The deceased died the day after his marriage. The Will was therefore revoked.

An application was made to the Supreme Court by the deceased’s brother, in his capacity as executor, for rectification of the Will to expressly include the deceased’s contemplated marriage. The Court accepted that as the deceased prepared his own Will he was unlikely to have known that his Will would be revoked as a result of his marriage, and consequently ordered rectification of the Will to give proper expression to the deceased’s testamentary intentions.