The provisions in the Wills Act 1970 (WA) in relation to marriage and divorce carried consequences that could undermine the intentions of the testator and lead to potentially unfair results. These provisions, and the general lack of testator knowledge of the law in this area, presented substantial concern, particularly in respect of the potential ability to impact on a great number of Western Australian families.
Terms of Reference
In 1979 the Commission was asked to examine and report upon the effect of marriage or divorce on a will including, in particular, the wills of people who subsequently lose the mental capacity to make a new will.
Outcomes
The Wills Amendment Act 2007 which amended the Wills Act 1970 closely adopted the Commission's recommendations. The effect of the amended s 14 is to widen the exceptions to the rule that a will is revoked on marriage such that, provided the will is made in contemplation (express or otherwise) of a marriage, no declaration is required in the will. Further, the Act also inserts s 14A which provides that a testator's will is revoked upon divorce or annulment of the testator’s marriage unless intention to the contrary appears in the will or is established by other evidence.
