I. THE PRESENT LAW AND ITS HISTORICAL BACKGROUND

9.1 Section 15 of the Wills, Probate and Administration Act, 1898 provides:

15(1) Every will made by any person shall be revoked by his marriage (except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not, in default of such appointment, pass to his executor or administrator).

(2) A will made after the commencement of the Conveyancing (Amendment) Act, 1930, which is expressed to be made in contemplation of a marriage, shall not be revoked by the solemnisation of the marriage contemplated.

9.2 By the seventeenth century, under the general and ecclesiastical law of England, marriage in certain circumstances had the effect of revoking a will.¹ A woman’s will was revoked by her marriage, because the law stated that on marriage she lost her capacity to make a new will or to change an earlier will.² However a man’s will was not revoked merely on marriage, because his wife, not being the husbands heir at common law, could not benefit by the revocation of his will.³ In the case of men, wills were only revoked by subsequent marriage coupled with the birth of children of that marriage. It was considered that the birth of a child caused such a change in a man’s domestic circumstances that it was presumed by the law that he intended to revoke his prior will. The rule was evolved in order to protect his heir, not his wife.⁴ If a man married and then made a new will, the subsequent birth of children did not revoke that will, as it was assumed that it was made in contemplation of there being children to the marriage.⁵ When a man’s will or marriage settlement provided for future children, the will was not revoked by the subsequent marriage and birth of children.⁶ These rules relating to revocation were initially confined to personal property, but finally in 1771 it was held that they also applied to real property.⁷

9.3 For a considerable period the ecclesiastical courts held that the rules relating to the revocation by marriage of wills of males only constituted a presumption that could be rebutted on proof of a contrary intention.⁸ However, the common law and equity courts took the view that the presumption was absolute and irrebuttable.⁹ Finally, it was established in Marston v Roe¹⁰ that the presumption could not be rebutted by contrary evidence. Tindal CJ pointed out

[It is] a principle of law, of which the foundation [is] a tacit condition annexed to the will itself when made, that it should not take effect if there should be a total change in the situation of the testator’s family.¹¹

9.4 In 1833 these principles were considered by the Real Property Commissioners, who concluded that the rule relating to revocation by marriage of the will of a woman should continue, but that the rules relating to the wills of males should be abolished. It has been pointed out that the recommendation relating to women was justified because of their legal incapacity at that time.¹² With reference to men, the Commissioners concluded:

If the hardship arising in individual cases, from the neglect of testators to alter their wills, is a sufficient reason for the continuance of the rule, the same principle would afford ground for extending it... It appears to us, that the law having entrusted to every man a power of testamentary disposition over his property, must rely upon its being exercised according to the testator’s intentions and that no will ought to be set aside on conjectures respecting what the testator’s intentions may have been in consequence of a change of circumstances.¹³

That was in line with earlier judicial criticisms of the rules. For example, in 1815 Lord Ellenborough had exclaimed:

But where are we to stop? Is the rule to vary with every change which constitutes a new situation giving rise to new moral duties on the part of the parent?¹⁴

9.5 But when the reforms advocated by the Commissioners were debated in the English Parliament the main concerns about the existing legal rules were their uncertainty and confusion about the title to property arising from their operation. The recommendations of the Commissioners to confine automatic revocation to women’s wills were not adopted and the following became section 18 of the Wills Act 1837:

And be it further enacted, that every will made by a man or woman shall be revoked by his or her marriage (except a will made in exercise of a power or appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin, under the statute of distribution).

9.6 Before the Wills Act 1837 came into operation it was realised that s18 would lead to the revocation on marriage of wills which were in fact made in contemplation of marriage. Sir Edward Sudgen was highly critical of this anomalous situation¹⁵ and he moved unsuccessfully in Parliament to suspend the coming into operation of the Act But it was not until 1925 that the law in the United Kingdom was altered by providing:

A will expressed to be made in contemplation of marriage shalt notwithstanding anything in section 18 of the Wills Act, 1837, or any other statutory provision or rule of law to the contrary, not be revoked by the solemnisation of the marriage contemplated.¹⁶

9.7 The New South Wales Parliament adopted the English provisions of 1837 and 1925 in 1840 and 1931 respectively.¹⁷

II. OPERATION OF GENERAL RULE

9.8 The general rule enacted in s15(1) of the Wills Probate and Administration Act, 1898 is that marriage revokes an earlier will by operation of law. This rule is itself an exception to that prescribed in s16 which states that:

No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances.

9.9 Marriage revokes all wills including privileged wills.¹⁸ Since marriage revokes an earlier will by operation of law, irrespective of the testator’s intention, it therefore revokes the will even where the testator has executed some agreement covenanting not to revoke. As the revocation occurs by operation of law, it does not constitute breach of the covenant by the testator not to revoke an earlier will.¹⁹ A void marriage²⁰ and a voidable marriage which has been avoided during the testator’s lifetime²¹ does not bring about revocation.

III. THE RATIONALE OF THE GENERAL RULE

9.10 The brief historical introduction indicates that at least one of the factors that led to the creation of the general rule of revocation by marriage, ie the legal incapacity of married women, no longer exists. Nevertheless various arguments have been and continue to be advanced to support retention of the rule.²² The principal arguments supporting retention are:

• Marriage represents a fundamental change in a person’s life. Spouses acquire on marriage new personal and financial responsibilities which are likely to render inappropriate all or some of the provisions contained in an earlier will.
• Apart from wiping the slate clean, the rule is a protective device. By revoking old wills which otherwise may have survived accidentally and thereby bringing into play the rules applicable to intestate succession, the rule shields members of the testator’s immediate family from oversight, mistake or misjudgment It is more likely that the deceased’s intentions are achieved by the statutory imposition of an intestacy than by the preservation of an earlier will.
• Intestacy is preferable to forcing new spouses and children to assert their claims through applications under the family provision legislation because (i) distribution under intestacy is less costly than judicial resolution of the matter under such legislation, (ii) judicial resolution involves time, uncertainty and inconvenience; and (iii) the new spouse or children are forced to rely on judicial discretion and may not receive as much under the Family Provision Act as on intestacy.
• The rule has been part of the law for a long time and is well known. If the rule were abolished, there is a danger that people aware of the rule but ignorant of its repeal would be misled into leaving prior wills unrevoked.
• The rule forms part of the law in all other Australian jurisdictions and it is desirable to maintain uniformity in Australia on this topic.
• Some of the harsh consequences of the operation of the rule can be removed by liberalising the exceptions to it.

9.11 The principal arguments for abolishing the general rule are:

• The historical reasons for its enactment are no longer significant A married woman now retains her separate property on marriage, and the status, social and financial position of women has altered very considerably since the nineteenth century.
• Spouses and children receive considerable protection under the Family Provision legislation, a creature of the twentieth century.
• Revocation upon marriage is inconsistent with the general approach of giving effect, as far as possible, to the actual intentions of testators. The general rule operates without regard to the circumstances of the case and is a blunt instrument It will for example disinherit a crippled sibling of the testator in favour of the testator’ s millionaire spouse.
• There are cases where wills were not saved by the proviso in s15(2) even though there was clear evidence of the testator’s actual intention that the will should survive an impending marriage. (Of course such criticism does not necessarily lead to the abolition of the general rule, but may suggest that the proviso needs reformulating).
• The rule operates to revoke whole wills and thus disinherits legatees who may have no rights on intestacy or under the Family Provision Act, 1982.
• A surviving spouse might become entitled to far more on intestacy than is required to meet his or her needs.
• A testator might die intestate because he or she failed to realise that marriage revoked an earlier will. The general rule is far from universally known.
• The rule will frequently apply arbitrarily and unfairly, by revoking provisions of wills which

protect the testator’s children of an earlier marriage;

protect a spouse under a prior marriage,

favour relatives, friends or charities, whom the testator intends to benefit without adversely affecting the legitimate claims of the new spouse or children,

appoint executors, trustees, and guardians of minors,

provide directions for the use of parts of the testator’s body for medical or research purposes.



(With the rising incidence of divorce and remarriage the possibility of the problems referred to in the first two instances are increasing.)

• The existence of the rule and its “justification” on the grounds of fundamental change of circumstances provokes the question why it does not apply to de facto marriages, the birth or adoption of children, separation, divorce or the death of a spouse or children.
• The protection afforded by the Family Provision legislation to spouses, children and other dependents of the testator is a more useful, exhaustive, accurate, and discriminating means of achieving a just solution, covering all the persons and objects whom the testator should legitimately benefit, than is achieved by the application of the general rule.

IV. WILLS EXPRESSED TO BE MADE IN CONTEMPLATION OF MARRIAGE

9.12 Before turning to consider the various options for reform, we pause to consider the operation of s15(2) of the Wills, Probate and Administration Act, 1898. In some respects it modifies the rigours of the general rule, although its precise scope and application still cause difficulties for the courts.

9.13 According to si 5(2), it is only a will which is “expressed to be made in contemplation of a marriage” that is saved from revocation by the solemnisation of “the marriage contemplated”. The considerable body of case law discussing this provision²³ is wracked with disagreement. All authorities appear to agree that something must appear on the face of the will to indicate contemplation of a particular marriage and that in the absence of such an indication in the will extrinsic evidence is not admissible to show that the testator had an actual intention to marry present at the date of the will.²⁴ But dispute rages as to whether a will expressed²⁵ simply in favour of “my wife “X”²⁶ or “my fiancee X”²⁷ saves the will from revocation upon the subsequent marriage of the testator to X In some of the cases wills were held to be revoked although there was clear extrinsic evidence of an actual intention to marry being present at the date of the will, and not surprisingly these conclusions have been accompanied by expressions of judicial disappointment that the intentions of testators have been thus defeated.²⁸ More recently, courts in New South Wales and Queensland have decided that if there is some expression in the will arguably referable to a contemplated marriage (such as a gift in favour of “my fiancee X” or “my wife X”, where X was not then the testator’s wife), extrinsic evidence may be admitted. This extrinsic evidence can be used to assist in “construing” the will, to see if it expresses the requisite contemplation of a particular marriage.²⁹

9.14 This recent stream of cases goes a long way towards ensuring that wills deliberately but not explicitly made in contemplation of a particular marriage are saved from revocation by the operation of the general rule. But they still depend on the court finding some expression in the will giving rise to an ambiguity of construction Furthermore, it must be observed that doubts have been expressed about the correctness of this approach, particularly in regard to the “to my wife X” category.³⁰

V. OPTIONS FOR REFORM

9.15 An almost bewildering range of options presents itself for reform of the law in this area. The options include:

• make no change
• abolish the general rule and the exception in s15(2)
• modify the exception, either directly or by expanding the admissibility of extrinsic evidence
• save the will from revocation by marriage, but engraft a statutory legacy in favour of the new spouse and children³¹
• restrict the general rule to the testator’s first marriage³²
• abolish the general rule to preserve gifts in favour of children of former marriages but not in favour of former spouses (who would need to rely upon property settlement and maintenance rights given on divorce or rights under the Family Provision Act)³³
• restrict the general rule to the revocation of disparitive parts of wills³⁴
• extend the general rule to other situations reflecting a substantial change in the testator’s circumstances, such as birth of children, commencement of a de facto relationship, separation, divorce.

9.16 Law reform agencies that have considered the matter in recent years have divided on the appropriate response, and this divergence of views reflects the response of the consultants retained by this Commission and those who responded to the draft report which was circulated for comment. The retention of the general rule has been advocated by the Lord Chancellor’s Law Reform Committee;³⁵ the Queensland Law Reform Commission,³⁶ the Tasmanian Law Reform Commission,³⁷ and the Victorian Statute Law Revision Committee;³⁸ although in each case subject to the clarification or liberalisation of the exception. On the other hand the American Uniform Probate Code contains no ground of revocation by marriage (although there is one for revocation by divorce). The Law Reform Commission of British Columbia was divided on the issue, the majority favouring retention of the general rule with modification of the exception, the minority favouring abolition, and the Commission indicated that its final views would await the outcome of deliberation on that jurisdiction’s equivalent of the Family Provision Act.³⁹

9.17 In each Australian jurisdiction the general rule applies; there is a proviso about wills in exercise of a power of appointment; and there is an exception in relation to wills expressed to be made in contemplation of a marriage. There is one qualification to the last mentioned matter in that the Queensland Succession Act 1981 contains a provision in the following terms:

17(1)...extrinsic evidence, including evidence of statements made by the testator, is admissible to establish that an expression contained in the will is an expression of contemplation of that marriage.

This provision was recommended by the Queensland Law Reform Commission to assist in resolving the sorts of difficulties that are discussed in para 9.13.⁴⁰

9.18 The Victorian Wills Act 1958 allows two additional provisos or exceptions to the general rule. Section 16(2) provides:

A will shall not be revoked by a marriage of the testator if -

(a) ....

(b) it appears from the terms of the will or from those terms taken in conjunction with the circumstances existing at the time of the making of the will that the testator had in contemplation that he would or might marry and intended the disposition made by the will to take effect in that event; or

(c) the will contains a devise bequest or disposition of real or personal property to or confers a general power of appointment upon the person whom the testator marries.

Whilst s16(2) (c) saves a will from revocation by marriage if it contains a gift (of whatever size) in favour of someone whom the testator later happens to marry, s16(3) causes the remaining dispositive provisions of the will to fall into residue and to be distributed upon intestacy. It provides:

Where a will is not revoked by the marriage of the testator by reason of the operation of paragraph (c) of sub-section (2) any real or personal property that is disposed of by the will to, or is the subject of a general or special power of appointment conferred upon, any person other than the spouse of the testator shall be deemed to form part of the residuary estate of the testator and to be property in respect of which the testator died intestate.

This ensures that the spouse will receive such portion of that residue as he or she would have been entitled to if the will had been actually revoked upon the marriage, in addition to what passes to the spouse pursuant to s16(2)(c).

VI. RECOMMENDATIONS

9.19 Of all the matters dealt with in this Report we have found this the most difficult. Our five principal consultants were sharply divided in their views. In the draft report circulated in late 1985 (see para 1.9) the Commission indicated that its then view (by majority) was that a will should not be automatically revoked upon marriage and that si 5 of the Act should be repealed. The main reasons that then appealed to us were that the protection given by the Family Provision Act, 1982 is a more finely-tuned remedy than the automatic revocation provided by the general rule, and that it was inappropriate that those testators who are ignorant of the general rule should die intestate, contrary to their actual intentions.

9.20 The expression of this tentative view in the draft report evoked a strong negative response from quarters whose experience and interest in this area are worthy of considerable respect, notably the Law Society of New South Wales, the Family Law Council and the trustee companies. That response has led the Commission to the conclusion that the general rule providing for revocation of a will by marriage contained in s15(1) of the Wills, Probate and Administration Act, 1898 should be retained. Whilst recognising the force of the arguments supporting abolition of the general rule, the Commission considers that the following reasons justify this conclusion.

• Marriage represents a fundamental change in a person’s life and the new personal and financial responsibilities acquired on marriage are likely to render inappropriate all or some of the provisions contained in an earlier will. It is therefore likely that upon marriage a testator would wish to revoke an earlier will, if he or she thought about the matter.
• If the will is not revoked automatically, those close relatives who would take on intestacy need to make a claim under the Family Provision Act, 1982. To many non-lawyers litigation is a fearful prospect, to all, it is fraught with uncertainty. It should be remembered that the entire burden of costs of litigation under the Family Provision Act, 1982 is usually borne by the estate. Most estates of married persons are comparatively small and consist of little more than the matrimonial home.
• Whilst some beneficiaries under wills revoked by marriage will be unable to bring claims under the Act (notably charities), most who would have specific need which ought to have been satisfied by a testator and which is not met by the rules of intestate distribution will be eligible claimants.
• The existing rule is the norm in Australia and is fairly widely known If it were repealed (in one state alone) there would be likely to be testators who believed their wills were revoked on marriage, whereas the repeal of the rule would leave the wills intact No doubt time and an extensive program of public education could alleviate this, but we would presume that there would continue to be several testators who would order their affairs on the basis of the continuation of the old rule.

9.21 The exception contained in s15(2) of the Act (which is set out at para 9.1 and discussed in paras 9.12-9.14) requires amendment. Except in cases where the court has been prepared to perform a gymnastic feat of “construction”, its narrow scope has on occasions defeated the deliberate intentions of unwitting testators. We therefore recommend that:

(a) Section 15 of the Wills, Probate and Administration Act, 1898 should be amended so as to provide that a will made in contemplation of a marriage, whether or not that contemplation is expressed in the will, shall not be revoked by the solemnisation of the marriage contemplated. This would allow extrinsic evidence to be given of the testator’s intention to exclude the general rule. Such a provision would entrench the recent judicial developments referred to in para 9.13 and extend them in that the will itself need contain no indication of the relevant intention We consider that to allow extrinsic evidence only for the purpose of “construing’ some provision in the will is unduly restrictive and encourages fine and unreal distinctions. This comparatively liberal approach to extrinsic evidence is in line with the views elsewhere expressed in this report (see paras 6.33-6.35, 7.21. 7.23, 10.32), and indicates that we consider that a modern court is quite able to deal with disputed issues of fact of this nature in the comparatively few cases that will arise. To require evidence of the necessary intention invariably to be found in the will would, in our view, operate on occasions to defeat the actual and provable intentions of certain testators (cf Chapter 3).

(b) Section 15 should also provide that a will expressed to be made in general contemplation of marriage shall not be revoked by the solemnisation of a marriage. This would mean that a testator who is shown to have turned his or her mind sufficiently to the matter to have intended that the will should survive a particular marriage or marriage generally and expressed this intention in the will should not have that intention defeated by the general rule. The present exception is confined to an expressed contemplation of a particular marriage (para 9.13). The main thrust of many of the proposals contained in this Report has been to effectuate the actual intentions of testators where they are clearly evidenced. The Family Provision Act, 1982 should be the vehicle whereby such intentions are liable to be set aside, not a rule as to automatic revocation which is so framed as to allow some types of proved intention to be effectuated and other types to be frustrated. We have however, in this particular recommendation, continued the old requirement that the contemplation should be expressed in the will itself. The reason is that it might otherwise be possible to negate the general rule in virtually all cases, particularly where younger single testators are involved, simply by showing that, in a vague sense, the testator contemplated that he or she might get married sometime.

9.22 We mentioned in para 9.18 a further exception to the general rule which has been enacted in the Victorian Wills Act. That allows a will which may have been made with no expressed contemplation of any marriage to be saved if the testator later marries provided that the will contains a gift in favour of the person whom he or she marries; and states that any dispositive provision not in favour of that person falls into residue to be distributed upon intestacy. The substance, although not the form, of such legislation was proposed by the Victorian Chief Justice’s Law Reform Committee for the following reasons:

A testator may make a will in favour of a woman at a time when marriage between them is not in contemplation She may, to take some illustrations, be his business partner, or his mistress, or they may be working together in charitable or other activities. If later they should marry each other it is not at all likely that the provision so made will, by reason of that change of circumstances, be too great or inappropriate in kind. It may need to be supplemented by the widow’s share, as on an intestacy in the remainder of the estate, or by an order under the Testator’s Family Maintenance legislation But for the widow to have the benefit of the particular form of disposition selected by the testator may be of great importance to her, and it seems an unwarranted interference with the testator’s wishes to enact, as s16 does, that the provision made for her shall, in such cases, fall with the rest of the will.⁴¹

We do not consider that any such provision is necessary in New South Wales. When the Victorian Committee made its proposal the spouse of an intestate who was survived by issue⁴² was only entitled to $10,000 plus one- third of the remainder of the estate.⁴³ There was thus the real possibility that the gift intended by the will revoked by the marriage would pass to the other persons entitled to take on intestacy as well as the need to supplement the intestate provision in favour of the spouse by the gift in the will. In contrast, the current law in New South Wales is much more generous to the spouse of an intestate. Here the surviving spouse is entitled to the household chattels, $100,000 and one-half of the balance together with certain rights designed to secure the matrimonial home.⁴⁴ This means that the spouse is very likely to receive ample provision upon intestacy, and is certain to receive well over one-half of the estate. The latter result means that it is unlikely that any gift intended by the will that is revoked will pass to anyone other than the spouse and that the spouse will almost invariably obtain administration of the estate and with it control over any discretion as to appropriation of assets. Added to this are the rights under the Family Provision Act, 1982 in those cases where the rights on intestacy are inadequate or defeat proper expectations to particular assets. An additional reason for declining to recommend adoption of this Victorian model is that, without a complicated “hotchpot” proviso,⁴⁵ the surviving spouse who took what the will provided plus the statutory rights on intestacy might well get much more than the deceased could ever have intended and thereby deprive other persons of any proper share in the estate.

9.23 Since the revocation of wills on marriage is the general rule in Australia, it is, in our view, highly desirable that steps should be taken to draw this fact to the attention of persons contemplating marriage. We commend this matter to the Family Law Council with a suggestion that it be raised with the Commonwealth authorities administering the Marriage Act 1961.

1. The principles and their historical derivation are discussed in Graunke and Beuseher, The Doctrine of Implied Revocation of Wills by Reason of Change in Domestic Relations of the Testator (1930) 5 Wis LR 387: Durfee, Revocation of Wills by Subsequent Change in the Condition or Circumstances of the Testator (1942) 40 Mich LR 406; McKay, The Contemporary Validity (If Section 18 Wills Act 1837 (1975) 8 VUWER 246.

2. Hodson v Lloyd (1789) 2 Bro CC 534 at 544 (29 ER 293 at 298).

3. Durfee, note 1 above at p 407. Wives were considered as having been adequately protected by their entitlements to dower and by marriage settlements which were frequently executed before marriages.

4. McKay. note 1 above at pp251-252.

5. Doe dem White v Barford (1815) 4 M & 5 10 (105 ER 739).

6. Ex parte Ilchester (1803) 7 VesJr 348 (32 ER 142).

7. Christopher v Christopher (1771) Dick 445 (21 ER 343).

8. Fox v Marston (1837) 1 Curt 494 (163 ER 173); Brady v Cubitt (1778) 1 Doug 31(99 ER 24).

9. Goodtitle dem Holford v Otway (1795) 2 H BI 516 (126 ER 679); McKay, note 1 above at p249 Doe v Lancashire (1792) 5 TR 49 (101 ER 28).

10. (1838)8 Ad & El 14(112 ER 742).

11. Id at 58 (ER at 758).

12. Victorian Statute Law Revision Committee. Report upon the proposals contained in the Wills (Interested Witnesses) Bill 1971 (1972) at p14.

13. Page 32 of the Fourth Report

14. Doedem White v Barford (1815)4 M & S10 at 12 (105 ER 739).

15. He criticised it in his Essay on the Law of Wills p196 (cited by the Victorian Law Review Committee. note 12 above).

16. Law of Property Act 1925, s177.

17. The 1837 English Act was adopted in New South Wales in 1840 by 3 Vie No 5. The 1925 English reform was adopted by the Conveyancing (Amendment) Act, 1930 which came into force on 1 January 1931.

18. In Estate of Wardrop [1917] P 54.

19. In re Marsland [1939] 1 Ch 320; Clausen v Denson [1958] NZLR 572.

20. Warter v Warter (1890) 15 PD 152; Re Dawson (1948) 65 WN(NSW) 91. As to what is a void marriage, see para 10.21.

21. Re Roberts (1978) 1 WLR 653.

22. Discussions of the arguments pro and con may be found in Appendix C of the Victorian Statute Law Revision Committee Report upon the proposals contained in the Wills (Interested Witnesses) Bill 1971 (1972): Law Reform Commission of British Columbia, Report on the Making and Revocation of Wills (1981) pp71-73: Lord Chancellors Law Reform Committee, Report on the Making and Revocation of wills (1980) Cmnd 120 7902 Part III; Tasmanian Law Reform Commission, Working paper on Reform in the Law of Wills (1981) by G M Bates. Strong arguments are advanced against the rule by F C Hutley. The revocation of wills by marriage (1950) 23 ALJ 601; McKay, note 1 above; and Phelps, Revocation of wills by marriage - an outmoded relic (1954) 7 Oklahoma LR 307.

23. The cases are discussed in Hardingham, Neave & Ford. Wills and Intestacy (1983) para 603.

24. Eg Sallis v Jones [1936] P43; Re Hamilton [1941] VLR 60.

25. In Re Coleman [1976] Ch 1 it was held that the whole will must be expressed to be in contemplation of marriage. This conclusion has been widely criticised. see eg Lord Chancellor’s Law Reform Committee, note 22 above at para 3.18.

26. See Re Coleman, note 25 above at 5-6 and authorities cited by Hardingham, Neave & Ford. note 23 above at p124 nn 32-33.

27. See the authorities cited by Hardingham, Neave & Ford. note 23 above at p123 n31.

28. Eg Re Taylor [1949] VLR 201 at 202. In that case O’Bryan J suggested legislative reform by the addition of a further proviso, namely that marriage should not operate as a revocation of any testamentary disposition made in favour of the person whom the testator has married.

29. In the Will of Foss [1973] 1 NSWLR 180; Re Keong [1973] Qd R 516; Burns Philp Trustee Company Ltd v Layer [1984] 3 NSWLR 41.

30. Cf Re Coleman [1976] Ch 1 and the doubts expressed in Hardingham, Neave& Ford. Note 23 above p125. In In Will of Foss. note 29 above. Helsham J chose between two conflicting unreported judgments: see [1973] NSWLR 180 at 182-3.

31. This solution was considered and rejected by the Lord Chancellor’s Law Reform Committee. note 22 above at para 3.4. We too reject it mainly on the basis of its rigidity.

32. This solution was considered and rejected by the Lord Chancellor’ s Law Reform Committee. note 22 above at para 3.5. We too reject it on the basis that a later marriage is not always different in kind from a first marriage and much depends on the duration of each marriage, the circumstances of their termination and whether there were any children.

33. This solution was discussed in the Tasmanian Law Reform Commission’s Working Paper, note 22 above at pp35-36, but not adopted by the Tasmanian Law Reform Commission in its Report on Reform in the Law of Wills (1983) para 3.

34. This solution would meet some of the criticisms referred to in para 9.11 but is not favoured by this Commission because it offers only a piecemeal and somewhat arbitrary solution.

35. Note 22 above. Part III.

36. Report on the Law Relating to Succession (1978) QLRC 22 p11.

37. Report on Reform in the Law of Wills (1983) p14.

38. Note 22 above at p15.

39. Note 22 above at p73.

40. Note 36 above at pp11-12. The recommendation was made to ensure that the views expressed in Re Keong [1973] Qd R 516 age not displaced by the later contrary, views of Megarry J in Re Coleman [1976] Ch 1. See para 9.13.

41. Appendix C of the Report upon the proposals contained in the Wills (Interested Witnesses) Bill 1971 (1972).

42. Where there is no issue. no problem arises because the surviving spouse is entitled to the whole estate on intestacy unless (in New South Wales) his or her rights are displaced by those of a de facto partner.

43. Administration and Probate Act 1958 (Vie), ss50, 52(1)(a).

44. Wills, Probate and Administration Act, 1898, ss61A, 61B. 61D.

45. Such a proviso would. in affect require the surviving spouse to compensate the residue with the value of the gift in the will before dividing the residue between that spouse and the other persons entitled on intestacy.