What happens to a will made before marriage?

You have worked hard to build up an asset pool and are cognisant of the fragility of life. You decide to protect your lifework by getting a will drawn up, entrusting your possessions to loved ones. You then meet your soul mate and decide that you want to get married to them. They might not have a lot of money and you believe that your assets are safe if they decide to try and get their hands on them. You may have seen this situation play out a lot, and the conclusion stems on what happens to a will made before marriage.

Put simply, marriage will revoke any Wills made prior to that marriage unless an exception applies.

If you have a Will that was prepared and signed prior to your marriage, then there is a chance that the Will has been automatically revoked and would not direct your estate in the way you might expect or want.

Exceptions to revocation upon marriage

The exceptions to the general rule of marriage revoking previous Wills include:

1. If the Will is made ‘in contemplation’ of the marriage; and
2. Provision made under the Will to the new spouse is not revoked.

How does “in contemplation” work?

For a Will to be made ‘in contemplation’ of marriage, it is advisable to include a clause expressly stating that the Will would not be revoked in the event of marriage.

If the Will does not include this clause, it can be extremely difficult and costly for your executors to try to prove that it was made with the impending marriage in mind using supporting evidence.  This is particularly difficult if the time between the preparation of the Will and the date of death may have resulted in much of that supporting evidence being lost, forgotten, or destroyed.

Example 1

• James made a Will on 26 January 2000 gifting assets to his de-facto partner, Sarah, and his children from a prior relationship.
• On 25 April 2000, James and Sarah get married with little notice to the rest of the family.
• There was no ‘in contemplation’ clause in the Will.
• After 20 happy years together, James passes away.
• In the process of managing the estate, it comes to the executor’s attention that the Will was made prior to James’ marriage to Sarah.
• For the Will to stand, the executor now needs evidence to attempt to prove to the Court what James intended in the Will. This could include including statements from Sarah and James’ children attempting to recall circumstances from 20 years ago.
• Despite the relatively short amount of time between the original Will and marriage (about three months in this scenario), this is not a straightforward process and can result in substantial delay and come at additional costs in attempting to deal with the Court’s requirements.
• This could all have been avoided by including a clause referring to James’ contemplation of marriage to Sarah.

While the ‘in contemplation’ clause does not need to refer to a particular marriage, it is often preferable that it does so. Otherwise, if the Will doesn’t provide for a future spouse and is not updated again, then after marriage the Will may not provide for your spouse.

Example 2

• Jessica prepares a Will in 2005 leaving her estate to her parents with a general ‘in contemplation’ clause that states that the Will should not be revoked when she gets married.
• In 2010, Jessica meets Brandon and they marry a few years later.
• In 2020, Jessica dies without having updated her 2005 Will.
• The 2005 Will was not revoked by her marriage to Brandon and remains Jessica’s last Will, meaning that Jessica’s estate is left to her parents instead of her husband.

Provision to spouse (including ‘gifts’)

Even if a Will does not have an ‘in contemplation’ clause, any gifts made under a Will to your new spouse will continue. But these are the only parts of the Will that would continue after the marriage. Gifts made to beneficiaries who are not a spouse of the deceased are revoked and would not apply.

This can cause issues if there were additional gifts to others in the Will.

Example 3

• James prepared a Will shortly before his marriage to Sarah.
• James’ Will provided for a gift of $100,000 to his parents to reimburse them money they had gifted to him.
• The rest of his estate would go to Sarah.
• The Will failed to include any provision relating to a potential marriage to Sarah in the future or an ‘in contemplation’ clause.
• Shortly after James and Sarah’s marriage, James is involved in a serious accident killing him instantly.
• Because Sarah survived James, the gift to Sarah would still apply following the marriage as it falls under one of the exemptions to the rule that marriage revokes the provisions of a Will (as the gift was a provision to the surviving spouse).
• But, the gift of $100,000 to James’ parents under his Will was revoked by his marriage to Sarah and would no longer apply. James’ parents do not fall into the category of people who the exemption would apply to protect.
• James’ parents would not receive the gift that he had originally intended to provide to them and instead, the whole of the estate would pass to Sarah.
• If James had updated his Will upon marriage, the gift to his parents would succeed.

What are the effects of divorce on a Will?

In Victoria, the Wills Act 1997 (Vic) provides that once you are divorced, any part of your Will that mentions your former spouse will be revoked, unless there is something in your Will which demonstrates that you did not intend for this to be the case.

As you can see, ensuring that your Will is either drafted correctly or updated is incredibly important. It will ensure that your intentions are well understood and will make the process substantially more straightforward for loved ones who are dealing with your loss.

If you want to draft a Will for the first time or update an existing Will in contemplation of marriage, please do not hesitate to contact our team on (03) 9793 7888 or send us an email at reception@justfamilylaw.com.au.