Recent developments in relation to Wills and Deceased Estates - Same Sex Marriages

 

 

As you would already be aware, the law is intended to reflect community standards and changes regularly to do so.

The Australian Government at the end of 2017 passed legislation on Same Sex Marriage by amending the Marriage Act 1961 (Cth).

It is our view that a Will made by a person prior to entering into a legal Same Sex Marriage will have their Will revoked by that Marriage under s12 of the Succession Act 2006 (NSW).

We would suggest that you contact Jodie Jamieson, Matt Howlin or Reg Gibson for advice if you are contemplating entering into a same sex Marriage and, at the same time, reviewing your Will.

What documents may constitute a Will?

 The Succession Act 2006 (NSW) gives guidelines to the Supreme Court of New South Wales in determining what “documents” might constitute a valid Will.  Those guidelines are ever changing.

The recent case of Nichol v Nichol (2017) [decided in the Supreme Court of Queensland] found that a saved text message on a mobile phone was a “document” within the meaning of the relevant legislation.

In this case Mr Mark Nichol committed suicide but, shortly before he did so, attempted to send a text message from his mobile phone to a friend.  That text message used the words “my Will”, identified his property and asked for his ashes to be scattered after cremation. 

The Court found that, in all of the circumstances but particularly as Mr Nichol was contemplating his own death, that the text message (although never received by the recipient) was a Will.  It subsequently Probated that text message as a Will.

If you have any questions in relation to the making of a Will, or interpreting a Will already made, please make an appointment with:

  • Matt Howlin;
  • Reg Gibson;
  • Johnathan Neofytou; or
  • Daniel Stephenson

for appropriate legal advice.

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chambers@gibsonhowlinlawyers.com

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