In Western Australia, getting married or divorced after making a
Will automatically revokes (invalidates) that Will.
Sections 14 of the Wills Act 1970 (WA) provides that a Will is
revoked by the subsequent marriage of the testator (Will-maker),
unless it is made in contemplation of marriage. The phrase "in
contemplation of marriage" means that the Will is made in the
context of "intending, proposing or expecting a marriage, or
having a marriage in mind as a contingency to be provided for or as
an end to be aimed at."1
Making a Will in contemplation of marriage means that
there is an express clause in the Will stating that it is made
in contemplation of marriage to a specific person; or
there is other evidence to show that the Will was made in
contemplation of marriage.
If there is an express "contemplation of marriage"
clause in the Will, then that clause should include the
the full name of the testator's partner, fiancé or
that the Will is still valid even if that marriage does not
If there is an express "contemplation of marriage"
clause in the Will, then there must be significant external
evidence to establish that the testator made the Will in
contemplation of marriage. For example:
the wording of the Will, including whether the spouse is
described as a fiancé or fiancée;
the testator's discussions with the solicitor;
whether the testator made family and friends aware of an
intention to marry; and
the likelihood of the marriage as at the time the Will was
Hoobin v Hoobin 
The deceased married his first wife in 1954 and they divorced in
1990. There were five children of the marriage.
The deceased met his partner in 1994 and they commenced a de
facto relationship in 1966. The deceased proposed a number of
times, but his de facto partner delayed accepting the proposal.
The deceased was diagnosed with cancer in January 1999. The
deceased made a Will in January 1999, leaving his estate to his de
facto partner, to the exclusion of his children. The deceased
advised his solicitor that he was in a de facto relationship and
thinking about marrying his partner. The deceased was advised that
if he intended to marry, then the Will should be made in
contemplation of marriage. The deceased instructed that the Will
should not be made in contemplation of marriage, because he
expected to die shortly. The deceased eventually married his de
facto partner in June 2000, a few days before he died.
The issue before the Court was whether:
the Will was revoked when the deceased married his second wife;
the deceased made his Will in contemplation of marriage to his
The Court emphasised that there is a difference between:
making a Will having contemplated marriage; and
making a Will in contemplation of a marriage.
There must be a relation between the act of making the Will and
the state of mind of contemplating a particular marriage. There
must be a more definite state of mind than a mere consciousness of
the possibility of a particular marriage.
In this instance, the Court found that the deceased's Will
was revoked upon his marriage in June 2000.
Subsequent Divorce or Annulment
The law in relation to the effect of ending a marriage (whether
by divorce or annulment) on a Will was changed in 2007 by the Wills
Amendment Act 2007 (WA). The validity of the Will depends on when
the Family Court issued the divorce order or annulment.
A divorce order or annulment granted before 9 February 2008 does
not revoke a Will.
A divorce order or annulment granted on or after 9 February
2008, does revoke a Will unless the Will was made in contemplation
of the marriage ending; section 14A into the Wills Act 1970
Separation from a spouse does not invalidate a Will, because at
law the marriage still exists. Rather, a Will is revoked upon the
Family Court issuing a Divorce Order or Annulment.
Consequences of a Revoked Will
If there is no valid Will at the time of death, then the Estate
will be distributed in accordance with the default rules of
distribution. These rules are known as the "rules of
intestacy" and are contained in section 14 of the
Administration Act 1903 (WA).
It is sensible to make a new Will when significant personal life
events (such as marriage or divorce) occur, to avoid the document
becoming invalid or out of date.
1Hoobin v Hoobin  NSWSC
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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