In Keates v Martin and Martin [2023] TASSC 31 Dennis Keates (the plaintiff) sought a grant of probate of a will made by his late wife Paula Catherine Keates (the deceased) on 28 July 1995.
Section 13(1) of the Wills Act 1997, provides that a will is revoked by marriage. However, s 13 also provides for several exceptions from revocation by marriage. Including if a Will is made in contemplation of the marriage: s 13(3). The question which arises in this action is whether the Will was revoked by the marriage.
The deceased appointed the plaintiff as the executor, trustee and sole beneficiary of her estate. On 23 December 1996, the plaintiff and the deceased were married. On 14 September 2021, the deceased died in Tasmania aged 74 at which time she was still married to the plaintiff.
The deceased’s estate consisted of real estate in Tasmania, bank accounts and movable property in Tasmania, with a total estimated value of about $1.4m. If the will is invalid because it was revoked by the marriage in 1996, the deceased estate will be distributed under the Intestacy Act 2010 (Tas). As the deceased left children who were not the plaintiff’s children s 14, provides that the plaintiff is entitled as her surviving spouse to her personal effects, a statutory legacy determined according to s 7 and one-half of the remainder.
The deceased’s two children are the defendants in the action. They were served with the writ and statement of claim. Neither appeared in the action and did not oppose a grant of probate of the 1995 will to the plaintiff. As the only persons who may be adversely affected by the result of the action, the Court has a duty to satisfy itself of the validity of the will.
At the time of her death, the deceased lived in Tasmania. Her estate consisted of both movable and immovable property, all of which was in Tasmania. However, although she and the plaintiff were married in New Zealand, her domicileThe intestate, an uncle & a Benjamin order at the time of the marriage was in Victoria. Case law provides that the law of the deceased’s domicile at the date of the marriage shall be applied: Re Martin [1900] UKLawRpPro 19; [1900] P 211; In the Estate of Micallef [1977] 2 NSWLR 929; Re Coomber [2014] SASC 37. Therefore the Victorian legislation then in force is applied At the time of the deceased’s marriage to the plaintiff in 1996 the Wills Act 1958 (Vic) was in force.
In Re Taylor [1949] VicLawRp 10; [1949] VLR 201 the testator left his entire estate to “my wife Alice Jane Louisa Maud Taylor”. They were not married at the time but married two years later. O’Bryan J ruled that this was not an expression in the will of the contemplation of the marriage.
Although the deceased referred to the plaintiff in the will as her husband, the Court did not think it could be accepted that the deceased’s will was, under s 16(2)(a), expressed to be made in contemplation of her marriage to the plaintiff.
However, under ss 16(2) (b) and (c) of the Wills Act 1958 (Vic) the result, in each case, is that the will is not revoked by the marriage. Under s16(2)(c) a testator may make a will in favour of a person at a time when marriage between them is not in contemplation. In this case, the deceased’s will devises all of her real and personal estate to the plaintiff, whom she later married.
That is sufficient to avoid revocation of the will. That is so because the plaintiff survived the deceased by 28 days, her entire estate devolved to him and there is no residuary estate which falls within the operation of s 16(3). Therefore the possible invalidation of other provisions of the will does not arise.
The Court was also satisfied that s 16(2)(b) provided that extrinsic evidence of the deceased’s intention is admissible meaning that the will is not revoked by the marriage. Reference by the deceased to the plaintiff in the will as her “husband” and the circumstances existing when the will was made in July 1995 constitutes powerful evidence that the deceased contemplated that she would or might marry the plaintiff and intended the gifts made by the will to take effect in that event. The deceased had just accepted his proposal of marriage and they were making wedding plans.
- They executed mutual wills,
- had been in a stable relationship for some years,
- owned property together,
- wore wedding rings, and
- she referred to him as her husband in other contexts.
Additionally, the Court was satisfied that the deceased, in her will, disposed of her estate in a manner which she desired to continue to operate if she and the plaintiff should subsequently marry. Importantly the Court held that it would have reached the same conclusion about the validity of the will had the law of Tasmania applied, whether at the date of the marriage or the date of death.
The Court pronounced the validity of the will and made a grant of probate in solemn form.