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Why marriage equality in Australia may have resulted in the revocation of Wills of some same sex couples

Why marriage equality in Australia may have resulted in the revocation of Wills of some same sex couples

Published on May 16, 2018 by Mathisha Panagoda

It’s potentially a case of unintended consequences however questions are growing over the validity of wills of some same sex couples who were married overseas before Australia recognised same sex unions.

It’s a little detailed but here’s the thinking.

The problem arises as a consequence of Section 12 of the Succession Act 2006 (NSW) which provides that a will is revoked by marriage, except in certain circumstances. I’ll go into those shortly.

The consequence of Section 12 could be an issue for same sex couples who fall into the following circumstances:

  1. They were already married overseas prior to the recognition of marriage equality in Australia;
  2. They had made a will after they married overseas (or made a will prior to that marriage that remained valid afterwards) but before equal marriage was recognised in Australia in December 2017; and
  3. Made provision in their will for persons other than their spouse.

If couples meet the criteria above then the subsequent recognition of these marriages in Australia may have inadvertently resulted in their wills being revoked under the Succession Act 2006 (NSW), but the law is currently unclear on the impact of the recent changes to recognise equal marriage and its interaction with succession law.

As a result, there is unfortunately a cloud hanging over these wills.

Now I made reference earlier to ‘certain exceptions’ under Section 12 of the Succession Act and these are important.

One exception to the revocation provision is that a disposition to the person to whom the testator is married at the time of his or her death contained in the relevant will continues in effect.

Therefore, where one spouse is gifted the whole of the estate under the original will of the other spouse, there is no “revocation” problem.

But if any disposition is made by a spouse to their family members or others, there is doubt regarding what those family members or others will take in view of the change to the law.”

Another exception is where a will has contemplated a marriage.”

What that means in practical terms is that in the potentially problematic circumstances numbered above, the recognition now of existing overseas marriages has potentially had the

outcome of revoking the wills of those couples who fall into the gap and are not covered by the exceptions to revocation in the legislation.

In the event that person died and there is no will or a will does not dispose of all property effectively, then the rules of intestacy would apply.

And we all know that dying intestate is something to be avoided because the distribution of the estate may occur in a way that did not reflect the personal wishes of the deceased person, and the loved ones or charities they had identified as beneficiaries in their will might actually miss out on the intended provision from the estate.”

So there are some serious questions and important legal issues that anyone in the situation outlined should be aware of.

And it is likely that this problem may even extend beyond NSW as other states have legislation which effectively mirrors the relevant provision in the Succession Act 2006 (NSW).”

“As this question has not been tested in a court, the only way to resolve the uncertainty at this stage is for any person who believes they might be impacted to seek legal advice and best create a new will.

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