Contemplating marriage and making a will

If someone is contemplating marriage they can make a will in advance to express that.  Normally under Australian succession law marriage cancels a will ( revokes in legalese).  The exception to this is if the will states that it was made in contemplation of marriage.

Registered relationships and partnerships

In addition to marriage legislative amendments in some states/territories such as South Australia, Tasmania and the ACT now provide for people contemplating entering into a registered relationship or partnership to make arrangements in their will.  However the legislation on this topic of making a will when contemplating marriage varies across the jurisdictions.

It is important to check what the provisions are for where you live if you are planning on making a will ahead of getting married or entering into a relationship.  Specific legal advice and assistance should be sought. A brief look follows.

Contemplating marriage and making a will in New South Wales

In New South Wales if someone makes a will containing provisions contemplating a particular marriage, the law is that the will won’t be cancelled when that marriage takes place: subsection 12(3) of the Succession Act 2006 (NSW):

(3) A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned.

If someone thinks it is highly likely they will be marrying in the near future, but are not sure at the time of will-making, the law in New South Wales provides that they may express that expectation in their will.  The benefit being that if the marriage goes ahead, their will should remain valid.  Generally it won’t be cancelled (revoked) by the operation of law: subsection 12(4) of the Succession Act 2006 (NSW) :

(4) A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.

Contemplating marriage and making a will in Victoria

In Victoria, the law states that despite the rule that marriage revokes a will, sub-sections 13 (a) and (b) of the Wills Act 1997 (VIC) state:

(a) a will made in contemplation of a marriage (whether or not that contemplation is expressed in the will) is not revoked by the solemnisation of the marriage contemplated; and

(b) a will which is expressed to be made in contemplation of marriage generally is not revoked by the marriage of the testator.

This is similar to New South Wales above.

Contemplating marriage in Queensland

In Queensland, the situation when making a will if contemplating a marriage is similar to New South Wales, see sub-section 14(3) of the Succession Act 1981 (QLD).

South Australia

In South Australia a will made expressed to be in contemplation of marriage is not revoked if the marriage contemplated is solemnised. Similarly a will expressed to be made in contemplation of the registration of a relationship under the Relationships Register Act 2016 (SA).  It is not revoked by the commencement of the registered relationship so contemplated.  See section 20 of the Wills Act 1936 (SA).

Contemplating marriage in Western Australia

Section 14 of the Wills Act 1970 (WA) provides for a will to be made in contemplation of marriage, subject to conditions. Subsection 14(2) states that, unless the will provides something different, a will made in contemplation of marriage will be void if the marriage is not solemnised.  A will is made in contemplation of marriage if it is expressed so be so, or there is other evidence establishing that.

Tasmania

In Tasmania, section 16 of the Wills Act 2008 (TAS)  provides that will made in  contemplation of marriage or a will made in contemplation of the registration of a deed of relationship, under the Relationships Act 2003 (TAS), whether or not expressed in the will, is not revoked by the solemnisation of the marriage or the registration of the deed of relationship respectively.

Also the statute provides that a will expressed to be made in contemplation of marriage generally, won’t be revoked by the solemnisation of the marriage of the willmaker. Similarly in the case of contemplation of registration of a deed of relationship.

A registered relationship is defined to be a personal relationship within the meaning of the Relationships Act 2003 (TAS).

Contemplating marriage in the ACT

Section 20 of the Wills Act 1968 (ACT) provides that after having made a will, if a person marries, or enters into a civil union or civil partnership, that will is revoked unless it was expressed to be made in contemplation of the marriage, or the civil union/civil partnership, as the case may be.

There are further provisions as to the what happens to gifts of property and powers in wills express to be made in contemplation of marriage, entering into civil union or a civil partnership. Specialist legal advice should be sought on these.

Contemplating marriage in the Northern Territory

Section 14 of the Wills Act 2000 (NT) provides that a will made in contemplation of a marriage whether or not expressed in the will won’t be revoked when the marriage is solemnised.  Secondly a will which expresses to be made in contemplation of marriage generally, won’t be revoked by the solemnisation of the marriage of the willmaker.

Some things to think about might be what happens if the intended marriage doesn’t take place, especially where children and blended families are involved.  Or whether different arrangements are preferred should the willmaker die before getting married. Or it may be preferred that the will is to operate regardless of whether or not the proposed marriage is solemnised.

In any event, professional advice should be sought when recording instructions in a will concerning marriage, civil partnerships, relationships, in those jurisdictions where provided.

B Stead
BHS Legal
Updated 8 August 2019.