Keates v Martin

Keates v Martin and Martin [2023] TASSC 31
Supreme Court of Tasmania
Pearce J
Succession – the deceased made a will in 1995, appointing her then de facto partner as her executor and leaving him the entirety of her estate – she had two children from a previous relationship – she married the de facto partner in 1996 – she died in 2021, still married to that husband – the husband sought a grant of probate of the deceased’s will – an issue arose whether the 1995 will had been revoked by the 1996 marriage – if the deceased had died intestate, the children would take one half of her estate – the children were served with the husband’s statement of claim and did not appear, and notified the husband’s solicitor that they did not oppose the grant of probate – held: at the time of her death, the deceased had lived in Tasmania, and her estate consisted of both movable and immovable property, all of which was in Tasmania – the deceased and her husband had married in New Zealand, but the deceased had been domiciled at the time of marriage in Victoria – the law to be applied was the law of the deceased’s domicile at the date of the marriage, that is, the law of Victoria, including Victorian legislation in force at the time – s16 of the Wills Act 1958 (Vic) as in force in 1996 was the relevant provision – that Act had been replead by the Wills Act 1997 (Vic), but the transitional provision in s52(2) of the amending Act provided that the 1958 Act continued to apply to wills made before the repeal and replacement, subject to irrelevant exceptions – s16 provided that a will was not revoked by marriage if: (a) it was expressed to be made in contemplation of that marriage; (b) it appeared from the terms of the will or from those terms taken in conjunction with the circumstances existing at the time of the making of the will that the testator had marriage in contemplation and intended the disposition made by the will to take effect in that event; or (c) the will contained a devise, bequest, or disposition of real or personal property to, or conferred a general power of appointment upon, the person whom the testator married – although the deceased had described her then de facto partner as her husband in the will, the Court did not consider that it was expressed to be made in contemplation of marriage – however, both (b) and (c) applied, with the consequence that the will had not been revoked by the marriage – the Court was satisfied that the deceased, in her will, disposed of her estate in a manner which she desired to continue to operate if she and her then de facto partner should subsequently marry – probate granted to the husband in solemn form.
Keates