What is “Contemplation of marriage”: Marriage revokes Will in blended family (NSW)

Last week, the Supreme Court of New South Wales published a judgement in a estate matter where the question of whether a Will was “made in contemplation of marriage” was a central focus of their attention.

In the case of Re Estate Grant, deceased [2018] NSWSC 1031, the deceased made a Will dated on about 3 January 2014 leaving his estate equally to his three children (2 biological sons and 1 step-son).

By way of background, the deceased had married his first wife who had two children of her own from a previous relationship. The deceased treated his first wife’s children as his own and they went on to have their own children; twin boys. They remained married from October 1989 to November 2013.

Years later, the deceased formed an extra-marital relationship with a co-worker, who later became his second wife.  The relationship between the deceased and his second wife began in an “off-again-on-again” type of relationship until the deceased separated from his first wife and they commenced a ‘de facto‘ relationship sometime in 2012.  The deceased’s divorce from his first wife was finalised in late 2013.

The deceased married his second wife on 19 September 2015. Less than 3 months later (14 December 2015), the deceased passed away from brain cancer. The deceased had no children with his second wife.

The deceased’s estate is valued at approximately $4.4 million and is comprised largely by real property. The deceased also had a death benefit in his self-managed superannuation fund in the amount of $850,000 with no nominated beneficiary.

The deceased made a Will on or about 3 January 2014.  In what the Court described as a ‘disjointed’ process of providing instructions, preparing a draft Will and executing the Will, the exact date the Will was signed and the whereabouts of the original Will were unknown. The parties to the proceedings did not dispute the date or the terms of the Will.

The Will provided for the deceased’s two biological sons and his step-son, Max, to receive his estate in equal shares.

Importantly, section 12 of the the Succession Act 2006 (NSW) provides that marriage of a testator will revoke the testator’s Will unless it was made in contemplation of marriage. Practically speaking, it is common to see a Will that is made in contemplation of marriage with an express statement to that effect. However, such is the case here, it can be argued that despite an express statement saying that the Will is made in contemplation of marriage, it was made in contemplation of marriage.

The claims

The second wife of the deceased claimed that the Will was not made in contemplation of marriage and that their marriage in September 2015 revoked the deceased’s Will dated 3 January 2014.  If this argument was upheld by the Court, this would mean that the deceased would have died intestate; meaning his widow would receive:

  • the personal effects
  • a statutory legacy (as set out in sections 101 and 106 of the legislation) – equal to approx $451,080;
  • one half of the remainder of the estate (with the other half to be divided between the deceased’s two biological sons).

The three sons of the deceased (supported by their uncle, the deceased’s brother and executor appointed in the Will), to whom the deceased had left his estate in equal shares to within his last Will dated 3 January 2014, claimed that the Will was made in contemplation of marriage so that the Court would uphold the Will as valid and they would receive their equal shares.  In this situation, if the Court upheld this argument, the deceased’s second wife would not receive any benefit from the estate, as the 2014 Will did not provide for her.

Given the two very different outcomes, in addition to the claim that the 2014 Will was revoked by marriage, the second wife also made a family provision claim to be considered in the event that the Court determined that the Will was valid and she was to receive nothing from the estate.

Conversely, the step-son of the deceased also made his own family provision claim to be considered by the Court int he event that the Court determined that the Will was revoked by marriage, and such a result would find that he received nothing from the estate. In this situation, the step-son would not receive anything from the estate if the Court finds that the Will was revoked by marriage and the deceased died intestate due to the fact that the step-son was not a biological child of the deceased and only biological children take a share of their parent’s estate on intestacy.

The central question

The central question of the matter was whether the 2014 Will was made in contemplation of marriage.

The Court determined that the Will was not made in contemplation of marriage and the marriage of the deceased to the second wife had the effect of revoking the Will and therefore the deceased died intestate.  This meant that the estate was to be divided in accordance with the intestacy rules, as follows:

  • second wife receives the personal effects, statutory legacy (as above) and one half of the remainder of the estate: approximately $2.4 million;
  • biological sons receive approx $990,000 each;
  • step-son receives no interest from estate on intestacy.

In coming to this decision, the Court had to consider a complex factual matrix of the “deceased’s road to a second marriage” to determine if the Will was made in a situation where it could be said to have been made in contemplation of his marriage to his second wife.

The Court heard the background of the relationship of the deceased and his second wife and facts relied upon by the step-son in support of a finding that the Will was made in contemplation of marriage. In summary, those facts included:

  • the deceased and his second wife began a relationship as early as 2006, several years before the deceased gave instructions for the preparation of the Will;
  • when the deceased and his first wife first discussed separation about 2010 , the deceased began to discuss “long-term plans” with his second wife and in some discussions he told his second wife that he would marry her “one day”;
  • the deceased made statements to his second wife in or about 2010 to which this second wife responded that she was willing to discuss marriage with him if/when he was in a position to marry her (referring to the deceased still being married to his first wife at the time);
  • an exchange via text message in 2011 contained words to the effect of “marry me” from the deceased to his second wife with a reply to the effect of “I will when you ask me properly one day”;
  • in April 2012, the deceased and his first wife formally and finally separated and the deceased and his second wife commenced their de facto relationship. At that time, the deceased had a Will leaving his estate to his first wife, and if she predeceased him, to their four children (his 2 biological children and 2 step-children (equally);
  • in early 2013, the deceased (of his own accord) consulted a fertility clinic about reversing his vasectomy procedure and shortly thereafter his second wife (after being encouraged by the deceased to do so) also made enquiries about the reversal and the prospects of her conceiving a child after the reversal;
  • in October 2013, the deceased and his second wife attended an auction to purchase a home in the deceased’s name (with financial contribution from his second-wife);
  • in November 2013, the deceased’s first marriage was formally dissolved preceded by a formal property settlement;
  • in 2013 and 2014, the discussions between the deceased and his second wife took the form of “when we marry”, not “if we marry”.
  • In discussions about marriage, the deceased spoke openly about his desire to ensure that first wife and his estranged step-son received nothing from his estate and the second wife’s affidavit evidence provided that their discussions were focused on ensuring they “had enough money set aside for our kids’ education but that when we married…he also wanted to ensure that he had money set aside that we both agreed he could use to contribute to a deposit on a unit or home for his sons when they reached that stage of their lives. He wanted to make sure that even though we planned to have children that our circumstances wouldn’t change his ability to do this“;
  • the deceased acted upon the intention to exclude his first wife and his estranged step-son from his Will;
  • in communications with his solicitor, the deceased between November 2013 and January 2014 explained to the solicitor that he was motivated to make a new Will for the purpose of disclaiming his first wife and his estranged step-son as beneficiaries.

Taking into account the above facts, the Court considered various principles of law relation to what “in contemplation” meant for the purpose of section 12(3) if the Act.

The Court preferred the approach by White J in Hoobin v Hoobin [2004] NSWSC 705 and noted those comments at para 102:

“As White J observed in Hoobin v Hoobin [2004] NSWSC 705 at [39] and [44]-[46], Layer v Burns Philp Trustee Co Ltd [(1986) 6 NSWLR 60] is authority for the propositions that: (a) to contemplate something does not necessarily import an intention to bring it about; (b) the deceased need not have intended nor understood that his or her contemplation of a particular marriage would preserve his or her will from revocation if that marriage took place; and (c) there is no requirement that a will be made because the making of the will and the proposal to marry.”

Further, at paragraph 105, the Court said:

“The essence of White J’s reasoning appears in paragraphs [42] and [53] of his judgment, when he made the following observations (with emphasis added):

“[42] As as matter of grammar, there is a difference between making a will having contemplated marriage and making a will in contemplation of a marriage. ‘In’ expresses a relation between the act of making the will and the state of mind of contemplating a particular marriage.  This suggests that there must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage. The testator must have the marriage in mind when he makes his will, although he need not make the will because he proposes to marry…

[53] In my view the phrase in sections 15(2) and (3) of [the Wills, Probate and Administration Act] ‘in contemplation of a marriage’ means intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at…” “

While preferring the views of White J, the Court also considered the comments by Dixon J in Steel v Ifrah [2013] 38 VR 186 where Dixon J called in the views of the High Court of Ireland where the terms of their legislation were not materially different to that of the NSW legislation.

The Court quoted various paragraphs of Dixon J’s judgement in Steel v Ifrah, at para107

“[7] It is a requisite state of mind that has to be established [in determining the meaning of ‘made in contemplation of a marriage’]… All that is required is thoughtful observation or consideration of a prospect, or an expectation, of a marriage. [Although] an expectation of a possibility of marriage in abstract will not suffice…

…the state of mind is simply contemplation of marriage. It does not extend to contemplation of the relation between a marriage and the validity of a will or contemplation of the continuing validity of a will after a marriage has been solemnised…

[9] There is no suggestion… that the words ‘mad in’ should be read narrowly …The word ‘made’ in the relevant statutory context refers to the entire process of making a will. Contemplation of a marriage when deciding on the terms of the will, that is, the manner of distribution of one’s estate on death, produces a will that is made in contemplation of marriage, even if there is no basis to conclude that the marriage was consciously in mind at the time of execution of the will.  Equally ,a will is made in contemplation of a marriage where the marriage was consciously in mind at the time of execution of the will, but there i no basis to conclude that the marriage was consciously in mind at earlier times in the process. Further, it is not consistent with statutory purpose to encrust the concept of ‘mind in’ with limitations on the process of will making by concentrating on any specific event in that process.”

[10] …The process of making a will commences with contemplation, whether arising from the advice of another or from self-reflection, of the need to make, or adjust, a statement of the intended distribution of one’s estate on death.  What the [Wills] Act requires is that there be contemplation of a marriage during that process, but not necessarily a continuously conscious contemplation, or a contemplation that is evident at the time of executor of the will.

[11]… In each case, when, in the process of will making, the testator should have in mind the prospect or expectation of a marriage will depend on the circumstances. The statutory language does not constrain the Court’s consideration of the whole process of will making.

[12]…what is important is that there be contemplation of a marriage when determining how, and to whom, one’s estate is to be distributed, because it is the making of a will without contemplation of the relevant circumstances that it may apply when it comes into effect that is the mischief.”

The Court held that White J’s formulation of the law is to be preferred to the extend of any difference between White J’s approach and that of Dixon J (at para110).

At para 120, the Court warned that:

“In the NSW context, care needs to be taken not to downplay too much the concept of “intention” upon an analysis of exceptions to the rule that a will is revoked by marriage. The concept of “intention” lies at the heart of disposition of property by will, and it is no less important to an assessment, generally, of whether a will, once made, is revoked by an act of a will-maker.

In applying the principles to the case, the Court said:

“An application of the concept of “a will made in contemplation of marriage” is fact-sensitive.

The facts of the current case can be dealt with within the treatment of the law found in Hoobin v Hoobin and (shorn of observations [the case from the High Court of Ireland]) Steel v Ifrah, but with a different nuance.  White J’s language (“there must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage” and “having a marriage in mind as a contingency to be provided for or as an end to be aimed at”) comes to mind.  So too does Dixon J’s requirement that there be something more than “a mere consciousness of a possibility of marriage in the future”: a “thoughtful observation or consideration of a prospect, or an expectation, of a marriage in the process of making [a] will”. In the present case attention must be focused on whether, in the “process” of making his will, the deceased ever had in mind a prospective marriage to Katerina or, incidentally to such a marriage, any claim on his bounty that she, or children they might have together, might reasonably have.” (para 135-136)

At paragraphs 155-159, the Court concluded that:

“The deceased (a man who was so conscious of his relationship with his children that he treated stepchildren equally with his own, that he expressly disinherited an estranged step-son and that he treated his other children equally) made no provision for, and articulated no concern about, future-born children.  He published his will to his brother, but provided no copy to Katerina.  She was out of mind in the process of making his will, though not out of sight.” (para 155)

“At the time he made his will (focusing on the whole process of will making, from initial contemplation, to instructions, to execution and to publication of the will), the deceased was living a compartmentalised life, a life in transition. 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.  He was in a de facto relationship with Katerina, but not living with her in the same house on a full-time basis. His purchase of the McMahon’s Point property took the form of an investment even when, nearly a year after the will was ‘made’, full-time cohabitation commenced.” (para 156)

“At the time the will was ‘made’ the deceased’s mindset was such that he was living in a mental space – a compartment – separate from that occupied by Katerina. She was not on his radar when he ‘made’ the will. That the two of them lived in a close personal relationship, does not alter the fact that he did not consider whether she, or any children they might have together, had any claim on his bounty. That was something he was content to defer until such time, if ever, they married.  His de facto relationship fell short of marriage in substance and in form. It was not inevitably bound to end in marriage.  He and Katerina had an on-again/off-again relationship over an eight year period, including a period of cohabitation in 2011, they were not cohabiting full time. Their relationship was a work-in-progress. Although marriage was from time to time discussed it remained a matter of speculation until such time as the deceased might bring himself to propose marriage, at which time Katerina (however hopeful she might have been) reserved a right of refusal.”  (para 157)

“He was focused upon extricating himself from a spent marriage (severing all connection with his wife, but maintaining relationships with favoured children of that marriage), unconcerned with any prospective marriage or family obligations arising from such marriage.” (para 158)

“For these reasons, I conclude that the deceased will was not (within the meaning of section 12(3) of the Succession Act) made in contemplation of his marriage to Katerina and, accordingly, it was, by section 12(1) of the Act, revoked by and upon that marriage being solemised. The will cannot be admitted to probate.  The deceased died intestate. His estate must be administered in intestacy, subject to any family provision order made in favour of Max.” (para 159)

Family provision claim by the deceased’s step-son

On the basis that the Will providing for the deceased’s step-son was revoked by marriage resulting in him receiving no inheritance, pursuant to the rules of intestacy, the Court found that he was left without adequate provision from the estate.  The Court ordered provision for the deceased’s step-son in the amount of $750,000 to be paid from the deceased’s superannuation fund proceeds, after formally designating those funds as the notional estate of the deceased.

This case highlights the complexities of blended families in the context of estate planning.  Although the deceased clearly considered his step-son as his own, the legal framework that provides for situations where there is no valid Will can sometimes not respond in tune to those relationships.

You can read the case here.

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