The recent news about the estate of celebrated actor, director and raconteur, Sir Peter Ustinov has brought international attention to the dangers of not updating a will in anticipation of marriage or following divorce.
The double-Oscar award winner was married three times and had four children but he wrote his last will in pencil while in the middle of a divorce some 36 years prior to his passing away in 2004. This led Swiss courts to declare that he had died intestate. Media reports state that his family may have “squandered” his fortune of tens of millions of pounds on legal fees fighting over his estate before the Switzerland courts for over a decade. The dispute has now reached the High Court in London. In this article, the Wills Watch team considers the impact of marriage and the ending of a marriage on wills in Australia.
Effect of marriage
All Australian jurisdictions contain provisions in their legislation which revoke a will on the subsequent marriage of the willmaker, although the exceptions to revocation are not uniform across the jurisdictions.
Under the Australian Capital Territory, South Australia and Western Australia legislation, a will is not revoked on the marriage of a willmaker if the will was expressed to have been made in contemplation of that marriage (or the will was made in the exercise of a power of appointment and the property the subject of the appointment would not, in default of appointment, pass to the willmaker’s personal representatives). Wills Act 1968 (ACT) s 20; Wills Act 1936 (SA) s 20 and Wills Act 1970 (WA) s 14. In the ACT, this also extends to civil unions and civil partnerships.
New South Wales has adopted a different approach whereby the following are not revoked by the marriage of the willmaker:
- a will made, expressly or impliedly, in contemplation of that marriage
- a will made expressly in contemplation of marriage generally, and
- a disposition to, or an appointment as executor, trustee, or guardian of the person to whom the willmaker is married at the time of his or her death: Succession Act 2006 (NSW) s 12
The remaining jurisdictions, Northern Territory, Queensland, Tasmania and Victoria have combined the above positions: Wills Act (NT) s 14; Succession Act 1981 (Qld) s 14; Wills Act 2008 (Tas) s 16 and Wills Act 1997 (Vic) s 13. In Tasmania, this also extends to the registration of a “deed of relationship”.
These inconsistent approaches have been the subject of a recommendation by the National Committee for Uniform Succession Laws to adopt a harmonised position for all jurisdictions.
Effect of divorce
The legislation in the ACT, New South Wales, the Northern Territory, Queensland, South Australia and Victoria provides that on the termination of marriage:
- an appointment in a will of a former spouse as an executor, trustee or guardian is taken to be omitted from the will or treated as if the former spouse had died before the willmaker, and
- gifts left to the former spouse are revoked and will pass under the will as if the former spouse had predeceased the willmaker.
However, these provisions will not apply where there has been a contrary intention expressed in the will: Wills Act 1968 (ACT) s 20A; Succession Act 2006 (NSW) s 13; Wills Act (NT) s 15; Succession Act 1981 (Qld) s 15; Wills Act 1936 (SA) s 20A; Wills Act 1997 (Vic) s 14. In the ACT these provisions once again, extend to a civil partnership.
In the remaining jurisdictions, Western Australia and Tasmania, the consequence on a will of terminating a marriage is more severe. In those jurisdictions, terminating a marriage will revoke a will except where there is a contrary intention expressed in the will or there is other evidence establishing such an intention. In Tasmania, this provision extends to a registered deed of relationship: Wills Act 2008 (Tas) ss 17; Wills Act 1970 (WA) s 14.
Whilst the tragedy of Sir Peter Ustinov’s estate is an extreme example of a large estate being significantly diminished by claims of competing beneficiaries, the case illustrates the serious impact that failing to update a will can have on estates of all sizes.
The laws relating to the impact of a marriage or the termination of a marriage upon a will vary between jurisdictions and can have unintended consequences for willmakers. Accordingly, it is important that willmakers are aware of how the law in their relevant jurisdiction will affect their will and that they should review and update their will as appropriate.