Widow wins dispute over whether deceased contemplated marriage in Will

Published 03 Sep 2018

The Succession Act 2006 put in place specific guidelines for administering Wills after marriage or divorce. However, the way the provisions of the Act are worded can often be difficult for the court to assign to certain disputes.

Section 12(3) of the Act states that a Will is revoked by marriage, except in the instance that it was created in contemplation of a specific marriage. This is true whether or not the consideration is expressed in the Will.

A recent dispute about Will revocation

In a case before the Supreme Court of New South Wales this month, the question was whether or not a deceased man’s Will was revoked by his second marriage, who was his widow, or whether he had made the Will in contemplation of that specific marriage. If the latter, the Will would not be revoked under provision 12 of the Succession Act.

The estate of the deceased is estimated to be worth $4.4 million, on top of a superannuation fund worth $858,000.

The problem was that the deceased did not express that he made the Will in contemplation of marriage, but according to the wording in the Act, that is not a requirement.

The widow contended that the Will was not made in consideration of their particular marriage and it was thus revoked.

The deceased had a brother and three children who were named as sole beneficiaries in the Will. They contended that the Will was not revoked since it was made in contemplation of the deceased’s second marriage to the widow. Thus they believed that the Will should be admitted to probate.

According to the court documents, the location of the Will was not currently known and was not yet administered, but there was no disagreement about what was in the Will itself.

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