Revocation by Marriage

If you have a Will it is revoked if you marry someone after making it unless the Will was made in contemplation of that marriage.

Legislation in most jurisdictions provides that Wills made in contemplation of marriage generally or in contemplation of a particular marriage are not revoked by the marriage of the will maker.

Courts have held that the definition of contemplation of marriage depends upon the facts of the case. Importantly Courts have held that the will maker must hold the intention that the Will is to remain in effect after the marriage. Generally speaking a Will is made in contemplation of marriage if the will maker intends to propose or has marriage in mind when the Will is executed.

 In Western Australia a Will is revoked by Divorce except where the Courts find that there is evidence that the will maker didn’t intend this to occur. This provision seems harsh, as many of the provisions of a Will are not related to the spouse.

In other jurisdictions partial revocation occurs upon Divorce (and in Tasmania and the ACT these provisions include the termination of relationships other than Divorce). Where the former spouse is treated as if they had predeceased the will maker.

Importantly Divorce or annulment will not revoke the former spouse as trustee for the children of the will maker and former spouse.

In cases where a Will names no other beneficiaries apart from the former spouse the will maker is intestate upon divorce.

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