By Troy Palmer, Special Counsel and William Constable, Seasonal Clerk

As a consequence of the recent postal survey, the Federal Government intends to introduce a bill recognising same-sex marriage into the Parliament before Christmas. Assuming that this bill is passed, the ability of same sex couples to become legally married will have a significant impact on their estate planning.

In particular, the legal recognition of a marriage impacts the status of wills made prior to marriage. Section 13 of the Wills Act 1997 (Vic) states that a will is revoked by the marriage of the testator. All seven other states and territories maintain legislative provisions to the same effect.[1] As a result, the situation often arises where a will made prior to marriage is inadvertently revoked as a result of the marriage. If a new will is not created post marriage, at the time the person passes, they will do so intestate.

As same-sex couples begin to consider the possibility of their union being legally recognised as marriage, it is imperative that due attention is paid to the legal impact marriage will have upon their estate planning. One exception to the revocation of a will upon marriage is where the testator made the original will in contemplation of marriage. However, due to the previous political uncertainty regarding same-sex marriage, it is unlikely that same-sex partners would have contemplated marriage when making their respective wills. Therefore, it is unlikely they will be able to rely on this exception and is probable that their wills will be revoked.

It should also be noted that marriage has an impact on the validity of an enduring power of attorney in Queensland.[2] However, this provision is unique to Queensland and depends on whom is appointed as an attorney and is not shared by the other seven states and territories.

Amongst the excitement of the predicted passing of the same-sex marriage bill, it is important that same-sex partners who intend to marry contemplate the possibility that the passing of a marriage equality bill could impact on the operation of their current will and potentially powers of attorney. Consequently, those intending to wed under the proposed laws should seek legal advice to certify that their wills and powers of attorney maintain their validity and continue to operate in the manner that they were intended to.

[1] Succession Act 2006 (NSW) s12; Succession Act 1981 (QLD) s14; Wills Act (NT) s14, Wills Act 1970 (WA) s14, Wills Act 1936 (SA) s20, Wills Act 2008 (TAS) s16, Wills Act 1968 (ACT) s20.

[2] Powers of Attorney Act 1998 (QLD) s52.