Potential impact on estate planning laws

The passing of the same-sex marriage bill in Australia serves as a reminder to all couples contemplating marriage to consider the legal impact marriage will have upon their estate planning and to update their estate documents accordingly. In this article, our Estate Planning group, considers whether a Will executed by a person in a same-sex marriage prior to the recent legislative changes may have been nullified by virtue of the marriage.

Prior to same-sex marriage being legalised in Australia, thousands of same-sex couples married overseas where their marriages, while recorded as legal, were not recognised under Australian law. The recent changes to the Marriage Act mean that these marriages are now legally binding in Australia. While this is a long-awaited decision, a question has arisen over whether a Will executed by a person in a same-sex marriage prior to the recent legislative changes may have been nullified by virtue of the marriage.

Legislation in each Australian State and Territory provides that marriage revokes a Will. It is therefore possible that the sudden recognition of an overseas same-sex marriage under Australian law could have the effect of revoking a Will – either from the date the marriage was solemnised overseas or the date the marriage was first recognised in Australia (being 9 December 2017).

While marriage generally revokes a Will, it does not revoke: (1) gifts to the person to whom the testator is married at the time of death; (2) an appointment of executor, trustee or guardian in favour of the person to whom the testator is married at the time of death; and (3) a Will that is made in contemplation of a particular marriage or of marriage generally (noting that references are to NSW legislation only). It is therefore gifts to persons other than a spouse that are most ‘at risk’.

Could the changes affect you?

It is not yet clear when an overseas marriage will be treated as having occurred. Part VA of the Marriage Act recognises overseas marriages at the time the marriage was solemnised, provided the marriage would have been a valid marriage in Australia. This could suggest that, since overseas marriages were not recognised in Australia until 9 December 2017, this date will be the legal date of the marriage for the purposes of State and Territory law (with the effect that any Will made before 9 December 2017 would have been revoked on this date).

However, Part VA must be read in conjunction with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 which appears to treat marriages as having occurred at the time they were solemnised overseas, even if this occurred at a time when the marriage was not recognised as legal in Australia.

These issues have not yet been tested in Court and there is therefore no certainty about these matters. Accordingly, there is an issue that could be of concern to same-sex married couples who wed overseas before the recent changes to the Marriage Act.

If you were married overseas to a same-sex partner and made a Will before the same-sex marriage reforms came into effect on 9 December 2017, we recommend you consider updating your Will to avoid any risk that the gifts you made under your Will could be revoked. We also strongly recommend anyone contemplating marriage in the future (whether as a same-sex couple or heterosexual couple) review and update their Will and other estate planning documentation as a matter of course as part of the marriage preparations.

This article was co-written by Erin Brown and Corporate and Commercial Lawyer, Emma Morris.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.