Under Australian succession law, marriage generally cancels an existing will, subject to some exceptions.
However, if research on will making in Australia is any guide, the making or updating of existing written instructions as to what is to happen on death following the changed personal circumstances, probably won’t feature highly on the list of things to do.
Yet attending to making a valid will taking into account changed or soon to be changed circumstances is important. If not, the rules of intestacy would apply on death, and these may not produce the desired outcome.
Marriage generally revokes an existing will
Wills and succession legislation in the Australian States and Territories contain provisions which revoke any existing will of a person when they marry. It makes no difference what a person may have written in their will.
This general legal rule cancels any prior will upon the will maker’s marriage. However, there are exceptions and these can vary in extent from one state to another.
Links to the main sections are shown below:
- In New South Wales, the effect of marriage on a will is set out under section 12 of the Succession Act 2006 (NSW).
- In Queensland: Effect of marriage on a will, s 14 of the Succession Act 1981 (QLD).
- Victoria: What is the effect of marriage on a will, s 13 of the Wills Act 1997 (VIC).
- South Australia: Will to be revoked by marriage, s 20 of the Wills Act 1936, (SA).
- Western Australia: Subsequent marriage, s 14 of the Wills Act 1970 (WA).
- Tasmania: Effect of marriage or registration of deed of relationship on a will, s 16 of the Wills Act 2008 (TAS).
- Northern Territory: Effect of marriage on wills, s 14 of the Wills Act (NT)
- ACT: Revocation of the testator’s will by marriage, civil union or civil partnership, s 20 of the Wills Act 1968 (ACT).
Must be a valid marriage
For a marriage to cancel a previously made will, it must be valid in accordance with law: Marriage Act 1961 (Cth).
Relationships outside marriage – civil partnerships
In Queensland and the ACT, entering into a civil partnership, and/or a civil union (ACT), as defined in those jurisdictions also has the effect of revoking a pre-existing will. Similarly in Tasmania entering into a registered Deed of Relationship revokes the terms of a prior will. Again, similar exceptions can apply to these relationships as for marriage but the situation varies among the jurisdictions.
As mentioned above respective state laws provide exceptions to the cancelling effect of marriage on an existing will or parts of it, depending on the circumstances. It is important to note that these exceptions vary across the states and territories. Exceptions generally concern:
- Wills made in contemplation of marriage are not revoked if the marriage contemplated takes place. Some states provide that a will expressed to be made in contemplation of marriage generally, is not revoked by marriage.
- Under Western Australian law, a will is void if the marriage doesn’t happen, although this can be over-ridden if the will maker expressed a different intention. However in SA and the ACT, there seems to be a strict requirement in the law that the contemplation of marriage be expressly stated in the will, and that it does not extend as it may do in other states, to contemplation of marriage generally.
- A will in which the appointment of the spouse as executor, trustee or guardian won’t be revoked by marriage, if the will maker was married to them at the time of death.
- A will won’t be revoked if it makes a disposition to the person married to the will maker when he or she died.
- Wills made in the exercise of a power of appointment under certain conditions in particular situations, won’t be revoked by the marriage of a will maker.
Minors, marriage and making a will.
Under Australian succession law any will made by a minor (under 18s) is usually invalid. However, there is an exception where minors may make a will in contemplation of a particular marriage to a named person, and this should not invalidate the will provided that the marriage takes place. If the marriage is not solemnised, the will is of no effect.
Since marriage affects the legality of existing wills, through the operation of law and independent of the will maker’s intention, it is important to make a new will. Circumstances vary and with the different exceptions, legal advice from a solicitor should be obtained.
Tilse, C., Wilson, J., White, B., Rosenman, L. & Feeney, R. (2015) Having the Last Word? Will making and contestation in Australia. The University of Queensland.2.
A Civil Partnership is a legal relationship between two adults, regardless of gender.
8 October 2015
© BHS Legal