Marriage and your Will: what happens when things go wrong

Why this matters in contested estate litigation

From a litigation perspective, the issue of marriage and revoked Wills arises frequently in contested estate matters. When a person marries and their Will is automatically revoked, questions about their true intentions often surface after their death. Competing claims from a surviving spouse, children from current and previous relationships, and other family members can lead to complex and emotionally charged disputes.

How marriage can affect your Will

Under Australian law, a Will made before marriage will generally be revoked upon marriage unless it expressly states that it was made “in contemplation of marriage.” This clause confirms that the Will was intended to remain valid after the wedding. Without it, the moment you say, “I do,” your previous Will is cancelled.

When marriage automatically cancels your Will

In most Australian states and territories, marriage will automatically revoke an existing Will, unless that Will was specifically drafted in contemplation of marriage. The law assumes that a newly married person would want their spouse to inherit, but that assumption doesn’t always reflect reality, particularly in blended families or second marriages.

Litigation example

Consider this scenario:

Jenny made a Will leaving her entire estate to her two adult children from a previous relationship. In 2024, she marries John but does not update her Will. Because her Will wasn’t made in contemplation of marriage, it’s automatically revoked. When Jenny later passes away, she is deemed to have died intestate. Under intestacy laws, her new spouse, John, may inherit the majority of her estate, leaving her children with little or nothing.

In practice, situations like Jenny’s often lead to family provision claims, disputes over entitlement, and challenges to estate administration. These cases can quickly escalate into costly and time-consuming litigation if there’s no clear evidence of the deceased’s true intentions.

Key issues to watch:

• Intestacy disputes: where no valid Will exists, disputes often arise between a surviving spouse and children from previous relationships.
  
• Claims by de facto partners: while de facto relationships don’t revoke a Will, they can still give rise to claims under family provision laws.
• Separation and divorce: a separated but not yet divorced spouse may still be entitled under an existing Will.
• Variations across states: the rules differ slightly between jurisdictions, and so do the rights of eligible claimants.

How to protect yourself against disputes

To minimise the risk of litigation later, consider:

1. Updating your Will before or after marriage: ensure it accurately reflects your current circumstances.
2. Including “in contemplation of marriage” wording: if you’re preparing a Will before your wedding, make it clear that it’s intended to remain valid after marriage.
3. Obtaining legal advice early: proper drafting and documentation of your intentions can prevent future misunderstandings and litigation.
   
   

How we can help

At Maurice Blackburn, our experienced estate litigation lawyers act for clients in all types of estate disputes, including matters involving revoked Wills, intestacy claims, and challenges by spouses or children. We understand the complexities of these cases and work to resolve them efficiently,  whether through negotiation, mediation, or litigation.

If you believe a marriage has affected the validity of a loved one’s Will, or if you’re concerned that your own estate plan could be vulnerable to challenge, our team can help you understand your rights and options. Contact our team today.