Left Out of Will

John and Mary had been in a relationship for several years prior to getting married. During that time, John’s parents passed away leaving an inheritance.  Despite the fact that they were only boyfriend and girlfriend, John when creating his Will made Mary the sole beneficiary which reflected his wishes at that time. 

Some years later, John & Mary married. A few years later John suffered a major illness, the marriage broke down having lasted only 3 years and they became estranged but never divorced.

A decade further on, John suffered another major health crisis, similar to his first. During this time, his estranged wife Mary did not visit nor provide any comfort to him. However, one of his siblings returned from overseas to spend time with him during his recuperation. At that time, the Will was discussed and according to the sibling, John admitted that it had not been changed for nearly 15 years, but that he would like it to better reflect his current wishes. His sibling also believed that originally, his brother was intimidated into making a Will making Mary the sole beneficiary in the first place.

Unfortunately. John was involved in a tragic accident and passed away without having created a new Will.

John’s siblings requested a copy of the Will from Mary, the estranged wife but this was refused. Having no knowledge of the actual contents, they believed that John’s true wishes would be to have his assets distributed equally between the siblings and his estranged wife. 

There are 2 aspects of law in NSW that will impact this case whether the siblings will be able to successfully contest the Will -the effect that marriage can have on a Will and eligibility to apply for family provision orders.

Effect of Marriage on a Will:

Please note that a Testator is the person that made the Will.

1. A Will is revoked by the marriage of a Testator
2. Despite the above point, the following are not revoked by the marriage of the testator
• A disposition to the person to whom the testator is married at the time of his death,
• An appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his death,
• A will made in the 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.
• A will made in contemplation of a particular marriage, whether or not that contemplation is expressed in the will, is not revoked by the solemnisation of the marriage concerned.
• A will that is expressed to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator.

Applications for family provision orders

The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person—

1. A person who was the spouse of the deceased person at the time of the deceased person’s death,
2. A person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death,
3. A child of the deceased person,
4. A former spouse of the deceased person,
5. A person—
• Who was, at any particular time, wholly or partly dependent on the deceased person, and
• Who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
• A person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death.

Conclusion:

Considering the 2 legal issues indicated above, it appears that the siblings will not be able to successfully contest this Will. Firstly, the original Will has not been revoked and remains in place. Secondly, an application for family provision order for their deceased brother’s estate would unlikely be granted as the siblings would not be regarded as eligible & have the right to apply to the Family Court.

Advice:

Your Will should be regularly assessed so that it reflects your current situation. Any changes to marital status you should create a new Will as well as review your Executor of the Will. Other Estate Planning documents such as Power of Attorney and Guardianship as well as financial assets such as your Superannuation and the binding nomination are also important areas to attend to.