A recent estate matter Carroll & O'Dea were involved in demonstrates the importance to consider whether to include a 'contemplation of marriage clause' in your will if you are in a de facto relationship. Under this clause, the testator's intention that the Will is drafted prior to marriage and will continue to be valid and have effect after the marriage takes place, is made clear.
As a general rule, marriage has the effect of revoking a will. However, section 12 of the Succession Act 2006 (NSW) contains the following exceptions to this rule.
- Firstly, if under the will a gift is made to the person to whom the testator was married to at the time of their death, that clause remains in effect.
- And secondly, if the testator appoints the person to whom he or she was married as the executor, trustee, advisory trustee or guardian, that clause also remains in effect.
What Can Go Wrong?
A testator dies leaving a last will which she made few years prior to her marriage to her de facto partner. She left the whole of her estate to her children from previous relationship, and appointed her de facto partner as her executor. The will did not have a contemplation of marriage clause because she did not think she would marry her de facto partner. She then married to her de facto partner. The consequences of that marriage on her will created partial intestacy for her estate is set out as follows:
- The de facto partner (now a spouse) remains as the executor of the will and can apply for a grant of probate.
- The de facto partner is entitled to receive all of her personal effects, a legacy (gift) of $350,000 which is adjusted by the Consumer Price Index (estimated at $476,000 as at 1 March 2019) and one half share of the residuary estate, if any is left.
- The children from the previous relationship are entitled to share the remaining one half share of the residuary estate, if any is left.
To ensure that your testamentary intentions are carried out and to avoid any family disputes over your will, we recommend you review your current will and consider having a contemplation of marriage clause if you are in de facto relationship so your wishes continue to be valid after the marriage takes place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.