Validity of a Will – Does Marriage Revoke a Will?

Date: Sep 05, 2012
Document Type: Article

Section 12 Succession Act 2006 specifies the effect of marriage on a Will and its validity.

Section 12(1) provides that a testator’s marriage revokes the Will.

However the testator’s marriage does not revoke the following:

(a) a disposition to a person to whom the testator is married at the testator’s death

(b) an appointment of that person as executor, trustee, advisory trustee or guardian

(c) a Will in exercise of a power of appointment if the property in relation to which the appointment is exercised would not pass to the executor, administrator or NSW Trustee and Guardian if the power of appointment was not exercised

(d) a will made in contemplation of a particular marriage, upon that marriage taking place – the contemplation need not be expressed in the Will

(e) a will expressed to be made in contemplation of marriage generally.

If the Court is satisfied that a testator turned his or her mind sufficiently to the matter to have intended that the Will should survive a particular marriage or marriage generally it is likely to find the testator’s intention should not be defeated by the general rule that marriage revokes the will, in which case the Will may still be found to be a valid Will.

Marriage and divorce and the contemplation of marriage and divorce usually encourages a review of financial matters. It should also cause a review of your testamentary matters including a review of your Will, Power of Attorney and Appointment of Guardian.

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