When you get married, any Will you already have is (generally) automatically revoked.

This seems like a pretty simply proposition.  But here’s an interesting case which illustrates the problems that can arise.

Husband and wife were married 40 years and divorced. They had a property settlement and went their separate ways. Wife made a new Will leaving everything to her children.

Fast forward twenty years, and wife suffered dementia and lived in a nursing home.  Ex-husband started to visit her and occasionally take her out for day trips. After one such day trip he returned and announced that he and wife had re- married that day.

Return now to our simple proposition – wife’s Will, leaving everything to the children, was automatically revoked. Without a Will in these circumstances, her husband would inherit the vast majority of her estate.

Here’s where a bad day got worse for the recently dis-inherited children. They took the husband to the Family Court and (in what surely is a world first) attempted to have their own parents’ (re)marriage declared void, on the basis of wife not having sufficient mental capacity to have entered into it.

The reasoning was that if the (re)marriage was declared void, her Will would stand.   The children tendered extensive psychiatric evidence that the Wife cold not understand what she had done. Unfortunately for the children, the Family Court held that although the Wife’s mental capacity was severely impaired, she understood the general nature and effect of the marriage ceremony, even if she had no idea the effect upon her estate planning. The (re) marriage was valid.

In light of the psychiatric evidence the children had produced, any attempt by them to get wife to execute a new Will in their favour was doomed to failure.

This left the children in the position where they would have to contest the wife’s estate upon her death. Presumably it also left inter-family relationships at an all-time low.

The circumstances of this case lead to a proposition that you need to have more mental capacity to execute a valid Will than to get married. Such a proposition could lead to some entertaining debates.