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Making a Will “In Contemplation of marriage” – Part 1

Part 1 – The Facts

This short, two part article, looks at an aspect of will making that is familiar to lawyers, but perhaps not to the general public. It relates to the effect of marriage on a will.

A long standing principle of Wills in NSW that if someone has a Will, it is automatically revoked by subsequent marriage – unless the Will was made “in contemplation” of that marriage. In 2018, the Supreme Court had to consider, in a complex factual context, the meaning of that phrase. This article is necessarily a highly simplified summary of that factual context.

Whilst still married to his first wife, Mr Grant commenced a relationship with another woman, who he later married after divorcing. As a result, when he died, he had both children and stepchildren. The de facto relationship was “on again, off again” but became stable in about 2012.

Mr Grant finalised his divorce from his first wife in late 2013; married his de facto partner in September 2015; and died in December 2015. He made a Will in January 2014 which left his whole estate in equal shares to two biological and one step-child. The process of Will drafting had occurred over a fairly extended period of time.

The second wife, who received nothing under the Will, argued it was not made “in contemplation” of their marriage and was therefore revoked by the 2015 marriage. The practical consequence if that argument succeeded, was that Mr Grant died without a Will and the second wife would receive a significant part of his estate under the rules of intestacy. Unsurprisingly, the beneficiaries under the Will contended it had made in contemplation of the marriage, and was binding.

The decision of the Court is considered in part 2 next week.

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