Intestacy and Family Provision via the Contemplation of Marriage

The Succession Act 2006 (NSW) provides that marriage of a testator will revoke the testator’s Will unless it was made in contemplation of marriage.

It is common practice that a Will made in contemplation of marriage includes a statement to that effect. However courts have held that:

(a) to contemplate something does not necessarily import an intention to bring it about;

(b) the deceased need not have intended nor understood that his or her contemplation of a particular marriage would preserve his or her will from revocation if that marriage took place; and

(c) there is no requirement that a will be made because the making of the will and the proposal to marry.”

David Grant made a Will in January 2014 (“the Will”) naming his brother as executor and leaving his estate equally to his three children (2 biological sons and 1 step-son).

David was married twice. His first marriage to Lisa ended in divorce, and there was a subsequent property settlement. When David met Lisa she had two young children: Siegfried and Maximilian who subsequently changed their surname to “Grant”. Twin sons were born to David and Lisa in 1990.

At sometime prior to David’s death he and Siegfried were estranged. Maximilian was named as a beneficiary in the Will.

Katerina and David commenced an on again/off again relationship in 2006 when David was still married to Lisa. They commenced living in a de facto relationship in April 2012, following David’s final, formal separation from Lisa although they did not immediately reveal their relationship to their respective families or friends.

David and Katerina collaborated in the purchase of a property in McMahon’s Point in 2013. It was bought in David’s name but he and Katrina provided money toward the purchase  (in unequal amounts) and agreed that they would service the loan and pay all outgoings on the property, in equal proportions.

The Will was prepared for execution in late November 2013, at about the time of completion of the deceased’s purchase of the McMahon’s Point property. Instructions for the preparation of the Will were given, via email and telephone conversations between David and his solicitor, in November 2013.

In January 2014, David arranged to sign the Will in the presence of witnesses without engaging his solicitor in the process of settling its terms or attending to its execution.

David married his second wife Katerina three months before he died from brain cancer on 14 December 2015. David and Katerina had no children.

David’s estate was valued at approximately $4.4 million the majority of the estate comprised the McMahon’s Point property that he and Katerina shared. David also had a death benefit in his self-managed superannuation fund in the amount of $850,000 with no nominated beneficiary.

Katerina claimed that the Will was not made in contemplation of marriage and their marriage in September 2015 revoked the deceased’s Will dated 3 January 2014 arguing that:

David did not make a formal proposal of marriage  until June 2015;

  • at no time before then, did Katerina commit herself to marriage in advance of a proposal capable of acceptance;
  • at the time he executed his will on 3 January 2014, David did not have in contemplation marriage to Katerina, only freeing himself from his marriage to Lisa;
  • and the will was prepared in haste and, after procrastination on the part of the deceased, executed in haste as a “stop gap” will to be reviewed at leisure later at an unspecified time.

If the Court accepted this argument David would have died intestate; meaning Katerina would receive: the personal effects;a statutory legacy of around $450,000; and one half of the remainder of the estate (with the other half to be divided between David’s two biological sons).

The executor and three sons to whom David had left his estate claimed that the Will was made in contemplation of marriage so that the Court should uphold the Will as valid and they would receive their equal shares. In this situation, if the Court upheld this argument, the deceased’s second wife would not receive any benefit from the estate, as the 2014 Will did not provide for her.

Given the two very different outcomes, in addition to the claim that the Will was revoked by marriage, Katrina also made a family provision claim to be considered in the event that the Court determined that the Will was valid and she was to receive nothing from the estate.

Conversely, David’s stepson Maximilian also made his own family provision claim to be considered by the Court in the event that the Court determined that the Will was revoked by marriage, due to the fact that the stepson was not a biological child of the deceased and only biological children take a share of their parent’s estate on intestacy.

The court found that David didn’t make the Will in contemplation of his marriage to Katerina and by section 12(1) of the Act, the Will was revoked by and upon that marriage. Therefore Andrew died intestate. Pursuant to the rules of intestacy, Maximilian was left without adequate provision from the estate.  The Court ordered that family provision in the amount of $750,000 was to be paid to Maximilian from David’s superannuation fund proceeds, as the notional estate.





Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: