4.1 NO WILL TO BE REVOKED BY PRESUMPTION
STATE | SECTION |
ACT | no provision |
NSW | s16 |
NT | s21 |
QLD | s19 |
SA | s21 |
TAS | s22 |
VIC | s17 |
VIC (1994) | no provision |
WA | no provision |
This provision is that no will shall be revoked by any presumption of an intention on the ground of an alteration of circumstances.
4.2 MANNER OF REVOCATION
STATE | SECTION |
ACT | s21 |
NSW | s17 |
NT | s22 |
QLD | s20 |
SA | s22 |
TAS | s23 |
VIC | s18 |
VIC (1994) | s13 |
WA | s15 |
This section is concerned with the manner in which a will is revoked, viz. by the testator by a later will, by a revoking instrument, and by destruction of the will with the intention of revoking it, and by operation of law, viz. by marriage and divorce, or order of the Court under a dispensing or other power. It begins with words like “A will or part of a will is revoked only by...” and is therefore intended to be comprehensive as to revocation.
It is arguable that perhaps there should be separate provisions dealing with revocation by act of the testator, revocation by marriage, revocation by divorce and revocation by Court order. It is likely that this provision was originally intended to refer only to revocation by act of the testator and that the added references to sections providing for revocation by other means are drafting short cuts. The Tasmanian provision fails to include a cross reference to the Court’s dispensing power (section 26).
4.3 REVIVAL OF REVOKED WILLS
STATE | SECTION |
ACT | s22 |
NSW | s19 |
NT | s25 |
QLD | s21 |
SA | s25 |
TAS | s27 |
VIC | s20 |
VIC (1994) | s16 |
WA | ss16,37 |
These provisions are concerned with the revival of a will that has been revoked. They are affected by provisions in some States that allow the Court to dispense with requirements for the execution of wills, including revivals. The provisions tend to be in the language of the Wills Act 1837 (UK) so some reconsideration of the drafting would be appropriate.
4.4 EFFECT OF MARRIAGE ON WILL
STATE | SECTION |
ACT | s20 |
NSW | s15 |
NT | s20 |
QLD | s16 |
SA | s20 |
TAS | ss18,19 |
VIC | s16 |
VIC (1994) | s12 |
WA | s14 |
The Wills Act 1837 (UK) provided that a will is revoked by the marriage of the testator, except to the extent that it exercised a power of appointment irrelevant to the married status of the testator. Subsequent legislation allowed the will to remain on foot, despite the marriage, if the testator indicated an intention contrary to the rule. The wording commonly adopted was that the will should be “expressed to be made in contemplation of marriage”. This wording placed a high degree of proof upon the issue of intention and generated litigation.1 Later revisions to the legislation have concentrated on the question of the testator’s contrary intention and the degree of proof required. Thus in the Report of the Law Reform Commission of Western Australia entitled Effect of Marriage or Divorce on Wills2 the recommendations of the Commission respecting the effect of marriage on a will are principally concerned with the proof of the testator’s contrary intention.
The Victorian legislation is similarly preoccupied with issues of proof of contrary intention; but it has made a considerable contribution to the solution of the problem by a provision that marriage does not revoke the will to the extent that it makes provision for the person to whom the testator is married at the time of death. So far as the cases brought to Court were an attempt by a spouse to take a benefit left by a will made before marriage, this provision has the effect of short circuiting the problem of proof of contrary intention.
The more general issue raised is that of the extent to which testators should be allowed to indicate an intention contrary to a statutory rule. It is arguable that marriage is so important a step that a person getting married should be encouraged to make a new will after the event, rather than to try to make a will before the event attempting to take into account the consequences of a particular marriage or of marriage generally. On the other hand it is arguable that the testator’s intention, as is his or her presumed intention, should be an underlying concern of all wills legislation. A major factor to be considered is the costs factor of showing a contrary intention which is not expressed in the clearest terms.
There is a more general observation which places these issues in context. The average age of marriage in Australia is in the early to mid twenties. The average age of death for men is in the early seventies and for women in the later seventies. A will made before marriage is therefore unlikely to be relevant to a testator dying some fifty years later. That is to say, legislation about the effect of a contrary intention on the rule that marriage revokes the will is based on a statistically negligible assumption of early death. A statutory provision which allows an intention over fifty years old to be litigated is unrealistic. It is arguable that it would be better to lay down an absolute rule, viz that marriage revokes a will. This argument can be reinforced by the observation that a surviving spouse today fares far better, under intestacy rules, than he or she did in 1837; and that family provision laws also ensure that adequate provision is made for the proper maintenance and support of the surviving spouse. An absolute rule would be far easier as a basis for legal advice respecting the making of a will by persons intending to marry.
However, the Victorian solution which saves a will to the extent that it confers a benefit on a person to whom the testator is married at the time of death seems to be a useful compromise, although it requires consideration both as to principle and drafting.
These issues and the divergences of approach between the various statutes on this matter require consideration.
Issues for consideration
(1) To what extent should a testator be allowed to indicate an intention contrary to a statutory rule that the will is revoked by the marriage of the testator?
(2) Would it be preferable to have an absolute rule that marriage revokes a will?
(3) Should a will be saved to the extent that it confers a benefit on a person to whom the testator is married at the time of death?
4.5 EFFECT OF DIVORCE ON WILL
STATE | SECTION |
ACT | s20A |
NSW | s15A |
NT | no provision |
QLD | s18 |
SA | s20 |
TAS | no provision |
VIC | no provision |
VIC (1994) | s14 |
WA | no provision |
Divorce, like marriage, has a considerable impact on the economic situation of both parties. One object of a divorce is to terminate every aspect of the relationship which existed between the parties and to ensure that they are afterwards, so far as possible, economically independent of each other. If either party to a marriage has made a will benefiting the other it is likely that that party would wish to make substantial changes to that will in the event of divorce. So far as the will makes provision for the spouse it is likely that in the event of divorce the testator would wish that part of the will to be revoked. But so far as the will makes provision for others for whom the testator has decided, for whatever reason, to make provision it is probable that the testator would wish those provisions to continue.
Some States have already legislated. In the Australian Capital Territory, New South Wales and Queensland there is a provision the general tenor of which is that divorce revokes the will to the extent that it provides benefits for the spouse, or appoints the spouse to be executor, trustee, advisory trustee or sometimes guardian. In Tasmania the effect of divorce is that it revokes the wills of the spouses altogether, thus obliging them to make new wills.
The Law Reform Commission of Western Australia in a Report on the Effect of Marriage or Divorce on Wills3 recommended that divorce have the effect of partially revoking any wills of the spouses. The South Australian Law Reform Committee issued a Report entitled The Effect of Divorce upon Wills in 1977 also recommending that divorce have the effect of partially revoking any wills of the spouses. A provision was included in a Wills (Miscellaneous) Amendment Bill (SA) in 1993 but did not find its way into ensuing legislation (Wills (Miscellaneous) Amendment Act 1994 (SA)). The Victorian Law Reform Committee has recommended that divorce have the effect of partially revoking any wills of the spouses - see proposed Wills Act 1994 (Vic), section 14.
As in the case of the effect of marriage on wills, all these provisions attempt to define the extent to which a testator may displace the statutory provision by an expression of contrary intention. It is worth considering whether this statutory rule should be capable of being displaced by a contrary intention contained in the will. After all, the divorced parties may live for many years after the divorce and the intention of a will made before the divorce may seem to be irrelevant to a situation if death occurs many years later. It is arguable that the costs of showing such a contrary intention might often be too high a price to pay for this liberty and that a more absolute rule preventing a testator from indicating a contrary intention is justified. A clear rule would enable legal advisers to give divorced persons simple and correct advice and bring them to a clear realisation of the need to make new wills after divorce.
These issues, the absence of legislation in some States and the Northern Territory, and differences between States that do have legislation, await examination.
Issues for consideration
(1) Should divorce only partially revoke the will; such as to the extent that it provides benefits for the spouse, or appoints the spouse to be executor, trustee, advisory trustee and guardian?
(2) Should divorce revoke the wills of the spouses altogether?
(3) Should the statutory will be capable of being displaced by a contrary intention contained in the will?
FOOTNOTES
1. See eg Re Taylor [1949] VLR 201; Re Chase [1951] VLR 477.
2. Project No 76, Part 11, 1991
3. Project No 76, Part 11, 1991
