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When is a Will made in contemplation of marriage?
David Grant died in December 2015. In January 2014 he made his last will. In June 2015 he proposed marriage to Katerina, which she accepted. They had shared a relationship since 2006 and married in September 2015. Grant’s 2014 will was revoked by the 2015 marriage unless made in contemplation of marriage (Succession Act 2006, s 12). The Court decided that to be ‘made in contemplation of a particular marriage’, a will must be expressed to have been so made or it must it have been made by a will-maker who, at some time in the process of making a will, must have brought to mind the possibility of a formal act of marriage and claims on his or her bounty arising from or associated with the marriage.
This didn’t apply with Grant’s will as, ‘when the will was drafted, he was in the process of divorcing his first wife. By the time he executed it, he had divorced her. He had made no commitment to marry any other. Katerina had made no commitment to marry him, if ever he were to propose. Both were free agents, free to marry somebody else, or not to marry at all’. This produced intestacy see Re Estate Grant, deceased [2018] NSWSC 1031.
