The end of 2017 saw the commencement of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), amending the Marriage Act 1961 (Cth) to redefine marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life”, making Australia the now 26th country to legalise same-sex marriage.

From 9 January 2018 same-sex couples may legally marry in Australia. Marriages solemnised in a foreign jurisdiction are also recognised in Australia from 9 December 2017.

This momentous change in Australian legislation is a timely reminder to review the effect nuptials can have on your estate.

Pursuant to s 14 of the Succession Act 1981 (Qld) a Will is revoked by the marriage of a testator, meaning a pre-existing Will is automatically void when a person marries.

Exceptions to this may be found in s 14(2), whereby a Will of a testator will not be revoked by marriage if:

  • There is a disposition (gift or bequeath) to the person to whom the testator is married at the time of death; or
  • There is an appointment as executor, trustee or guardian of the person to whom the testator is married at the time of death.

Put simply, if your now spouse was named as the beneficiary or executor, trustee or guardian in your Will, the exceptions contained in s 14(2) may provide that your Will may not be void upon marriage.

Similarly, an exception may be found under s 14(3) whereby it may be possible to make provision for the Will to be made in contemplation of a marriage. As above, this may mean that if the Will was made bequeathing or appointing your now spouse, and was drafted in contemplation of your marriage, the Will may not be void upon solemnisation of that marriage.

In respect of the recognition of overseas marriages, there has been much speculation as to the effect that this legislation will have on the voiding of wills upon marriage. Some legal opinion suggests that if it is mere recognition of a prior marriage this is not a new marriage and will not have the effect of voiding the Will, with others arguing to the contrary. Interestingly, as this is brand new legislation, these matters are yet to be decided by the Courts. Watch this space in that regard!

Nevertheless, this is an important reminder to review your affairs with a Will and Estate Planning Lawyer. The best measure to avoid unwanted estate issues is to review and replace your Will if necessary.

Our friendly team at Stephens & Tozer have a wealth of experience in estate matters and planning and can assist you and your spouse to address, review or replace any estate plans you may have.

Kate Witt is an experienced paralegal in the commercial litigation team and is soon to be admitted as a solicitor in Queensland as well as the High Court of Australia. Kate has astute knowledge and working experience in an array of commercial litigation and other matters. Please contact our team at Stephens & Tozer if you would like any further information or advice about the contents of this article or your circumstances.

16 February 2018

Category: All / Wills and Estates