Making a Will “In Contemplation of marriage” – Part 2

Part 2 – The Decision

Last week's article outlined the facts of a Supreme Court case that looked at whether, or not, a particular will had been made "in contemplation" of marriage. Without rehashing the facts, the answer to that question determined which of Mr Grant's children, or his second wife, received (much of) his estate.   

Ultimately, the Court concluded Mr Grant's will had not been made in contemplation of marriage. The reasoning is quite subtle but suggests there is an important distinction between "making a Will having contemplated marriage and making a Will in contemplation of a marriage". That is, there must be more than a consciousness on the part of a Will maker, of the possibility of a particular marriage. The Will maker must have the particular marriage in mind when the Will is made.

On the particular facts, the Court concluded that at the time the Will was made, both Mr Grant and his (future) second wife had thought about the possibility of marrying, but were fundamentally 'free agents' who had not made any commitment to marriage at a future point in time.

A particular focus of the Will was the exclusion of the first wife (and an estranged step-son) from receiving any benefit. The Court considered those factors had precedence in Mr Grant's mind; not the contemplation of a future marriage to his second wife.

The Will was declared void, and the second wife did obtain a substantial share of the deceased estate (which was valued at around $5M).

As a side note, because the rules of intestacy applied, the natural children of Mr Grant received a share in the estate, but the step-child mentioned in the Will did not. The Court ordered a substantial amount be paid to that stepson on the basis that he had not been adequately provided for by Mr Grant.

If nothing else, the case shows why it is important to take advice about Wills or intended Wills when significant life events occur, or are about to occur – and in particular, where a potential marriage is 'on the horizon': Re Estate Grant, Deceased [2018] NSWSC 1031.