Plaintiff v Defendant

Wills Act 1997

2 Section 13 of the Wills Act 1997 provides as follows:

(1) A will is revoked by the marriage of the testator.

(2) Despite subsection (1) -

(a) a disposition to the person to whom the testator is married at the time of his or her death; or

...

is not revoked by the marriage of the testator.

(3) Despite subsection (1) -

(a) a will made in contemplation of a marriage (whether or not that contemplation is expressed in the will) is not revoked by the solemnisation of the marriage contemplated; and

(b) a will which is expressed to be made in contemplation of marriage generally is not revoked by the marriage of the testator.

3 The Wills Act 1997 revoked the Wills Act 1958, altering the provisions that governed revocation of a will by a marriage. Section 16(2)(b) of the Wills Act 1958 had provided that a will shall not be revoked by a marriage if it appears from the terms of the will, or those terms taken in conjunction with the circumstances existing at the time of the making of the will, that the testator had in contemplation that he would or might marry and that the testator intended the disposition made by the will to take effect in that event. What is now required is only that the will was made 'in contemplation of a marriage', which contemplation need not be expressed in the will.

4 In the present circumstances, the proposed marriage was much more than an idle possibility. The defendant's proposal to the deceased had been accepted some three months earlier in December 2009 and a date for the wedding, some six months hence on 10 October 2010, had been set. The issue between the parties was mostly defined by the fact that the defendant contended that the planned marriage was manifestly not in the deceased's actual contemplation at the time of making her will. It was evident that the deceased was silent about her marriage intentions when she gave her solicitor instructions to draw a new will.

5 There are three aspects of the statutory requirement that warrant discussion: what is meant by 'contemplation of a marriage', what is the temporal relation between that contemplation and the making of the will arising from the words 'made in', and, what is the requirement for proof of such matters.

The meaning of 'made in contemplation of a marriage'

6 Contemplation is a state of mind. The starting point is the language of the statute. Contemplation is used as a noun. The Macquarie Dictionary defines contemplation thus:

Contemplation noun 1 the act of contemplating; thoughtful observation or consideration; reflection. 2 religious meditation. 3 purpose or intention.

4 prospect or expectation.

7 It is the requisite state of mind that must be established. That state of mind is not the same as the earlier requirement of an expressed intention by s 16(2)(b) of the 1958 Act. Proof, sufficient for the repealed test, that a testator intended the disposition made by the will to take effect in the event of the contemplated marriage being solemnised, would plainly satisfy s 13(3)(a) of the 1997 Act, but the language of the exemption from the operation of the rule has changed. All that is required is thoughtful observation or consideration of a prospect, or an expectation, of a marriage. Although an expectation of a possibility of marriage in abstract will not suffice, the precise content of the expression 'a marriage' does not arise for consideration in this case. It is also clear from the statutory language used, in the context of the change effected by the amendment, that the state of mind is simply contemplation of a marriage. It does not extend to contemplation of the relation between a marriage and the validity of a will or contemplation of the continuing validity of a will after a marriage has been solemnised.

8 Some of the older cases that were cited to the court are concerned with the earlier requirement that contemplation of a marriage be expressed in the will.[1] To that extent, they are essentially construction cases of limited assistance. Because it was once required that the relevant contemplation be expressed in the will and because the occasion of attending on a solicitor to give instructions for a will is a time when what is in contemplation may actually be openly communicated, there is naturally an emphasis on evidence of the instructions given to a solicitor for a will. The issue of how the party bearing the onus of proof establishes that a will was made in contemplation of a marriage is distinct from what is required by that phrase. I will return to the questions of proof.

9 There is no suggestion, either in the section or in the Act, that the words 'made in' should be read narrowly. A will could be said to be 'made' when it is executed and commences to have legal effect, and in many instances throughout the Wills Act, the word 'made' appears to refer to that moment in time. 'Made' is the past tense and past participle of 'make'. A will is produced by making it, referring to the process by which something is made to be as it is. The execution of the will by a testator is the final step in the process of making a will, the step that creates a legally effective instrument. The word 'made' in the relevant statutory context refers to the entire process of making a will. Contemplation of a marriage when deciding on the terms of the will, that is, the manner of distribution of one's estate on death, produces a will that is made in contemplation of a marriage, even if there is no basis to conclude that the marriage was consciously in mind at the time of execution of the will. Equally, a will is made in contemplation of a marriage where the marriage was consciously in mind at the time of execution of the will, but there is no basis to conclude that the marriage was consciously in mind at earlier times in the process. Further, it is not consistent with the statutory purpose to encrust the concept of 'made in' with limitations on the process of will making by concentrating on any specific event in that process.

10 The broader context in which the marriage revocation rule operates relevantly explains why that is so. The process of making a will commences with contemplation, whether arising from the advice of another or from self-reflection, of the need to make, or adjust, a statement of the intended distribution of one's estate on death. What the Act requires is that there be contemplation of a marriage during that process, but not necessarily a continuously conscious contemplation, or a contemplation that is evident at the time of execution of the will. If that were required, the legislature could have so stated. The statute has required a lesser connection or relation between the prospect or expectation of marriage and the making of the will by not using the verb form, 'when contemplating' and by not identifying the point in the process of making a will when that contemplation must occur. So much is I think clear from the statutory language and context. Possibly, the verb form, had it been used, might have suggested a relation between making and contemplating that needed to be closer in time to execution or be continuous in the process.

11 A testator may determine how, and to whom, his or her estate is to be distributed before consulting with and instructing a solicitor to draw up the necessary instrument. A testator may first formulate his or her instructions, or change them, after receiving advice from the solicitor. These are the moments in the process of making a will that most relevantly relate to the purpose of having regard to contemplation of a marriage. The time of execution may be less significant, because it may be regarded by the testator as a formality. In each case, when, in the process of will making, the testator should have in mind the prospect or expectation of a marriage will depend on the circumstances. The statutory language does not constrain the court's consideration of the whole of the process of will making.

12 Marriage is an event that is commonly understood to naturally affect a testator's intentions about the distribution of his or her estate after death. Undoubtedly, the changing mores of Australian society concerning marriage, divorce, children, blended families and the holding and distribution of wealth and assets motivated the reform, in 1997, of the marriage revocation rule. Where once it might have been expected that a marriage would result in an intention not to distribute to the beneficiaries that had been selected prior to a marriage in order to favour the new husband or wife and the children of the union, the legislature considers it unsafe for the law to now make that assumption. An expectation of a second marriage, or a marriage following a union that resulted in children, may result in an intention to protect the entitlement of the children of that former union, rather than an intention to recognise the claims of or through a new marriage partner. What is important is that there be contemplation of a marriage when determining how, and to whom, one's estate is to be distributed, because it is the making of a will without contemplation of the relevant circumstances that may apply when it comes into effect that is the mischief.

13 It must appear probable that the testator gave thoughtful observation or consideration of a prospect, or an expectation, of a marriage in the process of making the will. A mere consciousness of a possibility of marriage in the future will not suffice but all that need be contemplated is a marriage, which must involve a particular person. The testator need not have any particular intention or contemplation about the future validity of the will, or the relation between the marriage and the validity of the will.

14 Broadly speaking, the authorities in respect of the marriage revocation rule, which has often been expressed in different language to that now used in s 13 of the Act, support this conclusion. In Layer v Burns Philp Trustee Co Ltd,[2] Mahoney JA, speaking for the New South Wales Court of Appeal, discussed the relevant phrase in the context of earlier forms of expression of the rule.

The words "in contemplation of a marriage" do not, in my opinion, require that the will be made because the deceased proposes to make a particular marriage or because he is subjectively conscious of the effect of such a marriage upon previous wills. "Contemplation", according to its primary meaning, involves merely that the deceased have in mind the relevant fact, in this case that a particular marriage is proposed. Its ordinary dictionary meanings include merely having in view or taking into account as a contingency: Shorter Oxford English Dictionary. The term may, in a particular context go beyond this and mean that what is done is done "with a view to" a particular thing and to deal with it: see Conway v Wade [1909] AC 506; or even to signify that there is an obligation to do it: Scene Estate Ltd v Amos [1957] 2 QB 205. I do not think that "contemplation" in s 15(2) requires that the deceased, for example, intend or even understand that his "contemplation" of the particular marriage will preserve the will from revocation if that marriage takes place.

15 When a like issue later arose before the New South Supreme Court in Hoobin v Hoobin,[3] s 15(3) of the Wills Probate and Administration Act 1898 (NSW) was, in relevant respects, identical to s 13(3)(a) of the Wills Act 1997. There were particular facts in that case that were influential in the court's conclusion and which distinguish it from the present circumstances. In particular, although the deceased had contemplated the possibility of marriage if he survived his forthcoming admission to hospital for surgery, he neither expected nor intended to marry the plaintiff. He expected to die in surgery. Because he did not think that he would survive his surgery, he had not turned his mind to what might happen if he did. Although he survived the surgery and later married the plaintiff, that marriage was held by the court to have revoked the will in these circumstances. White J observed:

As a matter of grammar, there is a difference between making a will having contemplated marriage and making a will in contemplation of a marriage. "In" expresses a relation between the act of making the will and the state of mind of contemplating a particular marriage. This suggests that there must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage. The testator must have the marriage in mind when he makes his will, although he need not make the will because he proposes to marry (Layer v Burns Philp Trustee Co Ltd at 67-68).

Although none of the cases to which I was referred or which I have reviewed decide the question of what state of mind is denoted by the phrase "contemplation of a marriage", they are all consistent with the last definition of "contemplation" in the Oxford English Dictionary.

The Oxford English Dictionary definition is in the same terms as the third and fourth definitions from the Macquarie Dictionary. White J concluded that the phrase in ss 15(2) and (3) of the Act 'in contemplation of a marriage' means intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at.

16 In an ex-tempore judgment following an unopposed application in Berry v Bell,[4] the Supreme Court of Western Australia cited Hoobin with apparent approval. The court was satisfied on the evidence before it that the will was made in contemplation of the testator's marriage to the plaintiff.

17 The judgment of O'Neill J in the High Court of Ireland in the matter of The Estate of Noel O'Brien deceased[5] was pronounced on facts that are at once substantially similar to, yet materially different from, the present circumstance. The relevant Irish statute effected a revocation of a will by a subsequent marriage unless the will was actually made in contemplation of a marriage, whether so expressed or not in the will. O'Neill J had cause to consider what is meant by 'in contemplation of a marriage'.

18 O'Neill J held that the phrase did not require that the intention or contemplation must be that the will should continue to have effect after the marriage and notwithstanding the marriage, for while that may be the consequence, 'consequence should not be confused with a precondition for it'. O'Neill J observed:

It is sufficient, in my view, if the evidence establishes that when the will was made, the testator actually had or must have had in contemplation a marriage to a particular person. To require an intention that the will continues to have effect after the marriage in question exceeds what the language of the section expresses and would, in effect, involve an addition to the section. Section 85(1) does not expressly say that "contemplation" in the context of the section means an intention that the will would continue to have effect after the marriage. Neither can it be said that such a construction of the section is warranted as a necessary or obvious implication from the language used in the section. It is noteworthy that the language used in the section does not mention the word "intention" at all, let alone any specific intention. The section adopts the much broader concept of "contemplation" which persuades me that the legislative intent was that a testator would merely bear in mind or have regard to a particular forthcoming marriage.

In my view, this analysis is both apposite to the terms of s 13 of the Wills Act 1997 and persuasive and I would, with respect, adopt it.

19 The defendant contended that s 13 requires that for a testator to be in contemplation of a marriage when making a will, the testator is required to have a simultaneous consideration of both the will and the pending marriage at the time the will is being made. He submitted that the 1993 Act resulted in a simplification of the rule as found in the 1958 Act, but the drafting did not remove the requirement of simultaneous consideration of a pending marriage while making a will. The defendant contended that so understood the existence of marriage plans does not deal with the state of mind required to be contemplating a marriage in the course of making the will. Were that all that was required, a mere plan to marry would preserve a will regardless of whether or not the will itself was 'made in contemplation of the marriage'. The relevant state of mind is one where the marriage is thought about, regarded or taken into account in the process of making the will. A mere plan to marry, without contemplation of that plan to marry in the making of the will, does not satisfy s 13(3)(a).

20 The defendant submitted that the intention of the legislature as revealed by s 13(3)(a) allows the actual intention of testators, where they are clearly evidenced, to be carried out. Thus, silence during the process of will making, particularly when a solicitor is involved, is insufficient to establish that the will was made in contemplation of marriage. Here, there was silence about the marriage when instructions were given to the solicitor and later when the wills were executed. Contemplation of the marriage, even though the deceased had accepted the defendant's proposal and a date was set, was not proved by the plaintiff. However, the defendant's contentions expose the issue of the time when, in the process of making a will, contemplation must occur, which I have discussed, and the issue of proof of that contemplation to enliven the exception to the revocation rule, to which I now turn.

21 The onus of proof of the state of mind - contemplation of a marriage - lies with the plaintiff. Because the testatrix cannot tell us what she was contemplating when making her will, this case is one where there is no direct evidence of the ultimate fact, which must be inferred from other established facts. As the Court of Appeal explained in Nolan v Nolan,[6] a court, when asked to infer a fact from indirect evidence, must consider the combined or cumulative effect of the whole of the evidence. The evidence must be evaluated as a whole and the object of the evaluation is to ascertain 'whether the evidence paints a picture ... to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details'.[7]

22 For this reason alone, a testator's silence about a contemplated marriage when giving instructions for a will, and when executing it, cannot be determinative. The defendant contended that his evidence and the solicitor's evidence about the circumstances in which instructions were given about the content of the will and the circumstances of its execution were decisive in his favour. I cannot accept that this contention is correct.

23 I now turn to the evidence. The evidence was by affidavit and all affidavits were tendered by consent, after objections were resolved. No deponent was cross-examined.

24 The deceased is survived by the defendant, four children from her first marriage and her grandson of whom she had custody. The deceased first married at age 16 and that marriage ended in 1986. The plaintiff is the second of her children, and born of this marriage. In 1990, the deceased married Geoffrey Ward. With her second husband, she purchased a property in Bonbeach. The deceased emerged as the sole owner of the Bonbeach property on her separation in 2003 from Mr Ward. This property is the principal asset of the deceased's estate. At the time Mr Ward moved out of the Bonbeach property, the deceased told him that she would ensure that the property would be left to her children.

25 The deceased's relationship with the defendant commenced in 2002. By mid 2003, the deceased regarded her relationship with him as committed and long-term. The pair began living together some time in 2005, when the defendant moved into the Bonbeach property. The deceased made a will in February 2005, in which no provision was made for the defendant. The terms of that will left her estate to her children. There was no evidence about prior wills or legal advice about wills and marriage before or at this time.

26 In May 2008, the deceased purchased a ring that she described as an engagement ring. The defendant disputes that it was an engagement ring. There were also contested suggestions that the deceased and the defendant were talking in 2008 about getting married at some time, but it is unnecessary to make any finding about what was then being contemplated.

27 In June 2009, the deceased underwent a mastectomy and reconstruction surgeries and chemotherapy treatment after being diagnosed with breast cancer. By the end of 2009, the deceased's doctors advised that her cancer had been eradicated.

28 In late 2009, probably prior to or around Christmas, the defendant proposed marriage to the deceased and she accepted his proposal. At this time, the couple agreed they would marry on 10 October 2010. At Christmas 2009, the deceased announced to her son and daughter in law that she was going to marry the defendant. The defendant states that he only proposed to the deceased 'out of the blue' late in 2009 during the deceased's recovery and had not spoken with the deceased about marriage prior to his proposal. It is probable, having regard to other evidence, that, in the year preceding, the deceased did discuss her intention to marry the defendant with her sister, children and close friends.

29 There was some dispute as to when the planning for the wedding began, whether it was in January 2010 or only in the few months prior to the wedding. The deceased bought two wedding dresses, the first on 20 May 2010, and the second, after gaining some weight, on 15 September 2010. I do not think that such matters greatly assist or detract on the issue of whether I can infer that the deceased had the marriage in contemplation when she made her will.

30 In early 2010 the deceased suggested to the defendant that they see a solicitor to draft their wills. The defendant described the deceased's suggestion as couched in terms of the protection that would be afforded to their respective children and themselves by new wills.

31 On 23 March 2010, the couple attended an appointment with a solicitor, Michael Ajzensztat. The deceased explained to Mr Ajzensztat that she had a divorce application on foot. This application, once finalised, would end her second marriage after seven years of separation. The deceased described the defendant as her 'partner' with whom she had been in a relationship for six years. She instructed Mr Ajzensztat that they both had children from earlier relationships, and each owned a house. I am satisfied that sufficient information was revealed by the deceased to put a prudent solicitor on inquiry about whether marriage was contemplated. At no time did Mr Ajzensztat ask the couple if they had any intention of marrying, nor did he give any advice about the marriage revocation rule that might have alerted the deceased or the defendant to mention the marriage.

32 The impending marriage, which at this time was approximately six months away, was not mentioned to the solicitor. I am satisfied that the deceased was reflecting on the marriage and the need to adjust her will, and that of the defendant, to protect the entitlements she wanted her children to receive while making some provision for the defendant. I am satisfied that the deceased decided how her estate was to be distributed without advice from the solicitor and before she attended the appointment.

33 On 24 March 2010, the following day, the deceased filed the application for divorce at the Family Court.

34 On 25 March 2010, the deceased returned to the solicitor's office and signed the will that is the subject of this dispute. The deceased left her jewellery and personal effects to her daughter; her life insurance policies, superannuation, the proceeds of her bank accounts and any motor vehicle to the defendant; and the residue to three of her children and her grandson. She granted to the defendant an entitlement to remain in occupation of the Bonbeach property for a period of up to 12 months 'should he so require'. The change in the distribution of her estate from her prior will was, relevantly, that her life insurance policies, superannuation, the proceeds of her bank accounts and any motor vehicle were gifted to the defendant and he was given a licence to remain in the Bonbeach property after her death.

35 On the same day, the defendant also signed his own will, leaving his residence in Frankston to his children from a former relationship.

36 The deceased had a number of discussions with her friend Ms Weerasooriya about the protection of her assets in the context of her relationship with the defendant. Some time after the making of her will on 25 March 2010, the deceased told Ms Weerasooriya that neither she nor the defendant could make a claim on each other's estate, as their respective properties were separate, and paperwork had been completed that would ensure that the Bonbeach property would go to her children.

37 Although the story does not end here, I am satisfied that when she made her will dated 25 March 2010 the deceased contemplated marriage to the defendant.

38 I am satisfied on the evidence that the way in which the deceased contemplated the marriage in relation to the making of the will was that she contemplated the desirability of making a new will in the period from accepting the defendant's proposal around Christmas 2009 to the conference with the solicitor in March 2010. By the time she saw the solicitor, she had formulated how her estate would be distributed and the probable reason she did so was to protect her children's entitlement to the Bonbeach property because she was marrying the defendant. Given her battle with cancer, she had good reason to consider the terms of her will during 2009 before the defendant's proposal. If she did so, plainly she saw no reason arising from her cancer to make a new will. The terms of her prior will provided for her Bonbeach property to go to her children. I am satisfied that she decided, specifically in contemplation of the planned marriage, that she needed a new will, how it would operate to distribute her estate on her death, and made an appointment to instruct a solicitor to draft a new will that reflected her decision.

39 It was not suggested by Mr Ajzensztat or the defendant that the proposed distribution of the deceased's estate by the will was formulated in conference. The defendant's evidence confirms that the deceased formulated how, and why, she proposed to distribute her estate before she saw the solicitor and in contemplation of their planned marriage. The defendant stated:

In early 2010, Heather brought up the topic of making a will with me. In our conversations about our wills, Heather and I did not talk about our wedding plans. Heather just spoke about us needing a will to protect our children and ourselves ... We did not talk about making a will when Heather was ill during 2009, or when my mother died in 2009, or when we first got together ... Heather did not say she wanted the will in case she had a relapse ... After she spoke with me, Heather made an appointment with a solicitor to have our wills made ... When we saw the solicitor Heather did most of the talking for both of us. Heather told the solicitor things about ourselves, like we were a de facto couple and we both had children from our earlier relationships and we both owned a house. The solicitor wrote down some notes and told us things about our wills. I do not remember any mention of the wedding during our appointment with the solicitor.

40 It does not matter what Mr Ajzensztat believed about her forthcoming marriage. There is no suggestion that the solicitor was of a mind that marriage was not in contemplation, which he may have assumed consistently with contemporary attitudes held by many persons with prior marriages and adult children like the deceased and the defendant. The probable explanation for the deceased's silence about the planned marriage in the conference is that the solicitor didn't ask whether the deceased and the defendant contemplated marriage. Further, the solicitor made no observation that might have caused the deceased, or the defendant for that matter, to mention what she expected or intended in that regard. There was no evidence that the deceased was aware of the principle that the marriage of a testator revokes a will.

41 As I have noted, giving instructions to a solicitor for a new will is a significant occasion for the content of contemplation to be revealed. But the absence of any express revelation requires careful analysis. As long ago as 1838 Baron Parke said: 'Contemplation of marriage is a vague phrase. He might not know that she would accept him'.[8] The uncertainty of whether a proposal was acceptable might explain silence about what was contemplated, that silence was born of a desire to avoid uncomfortable emotional responses to rejection or ambition, without excluding the probable inference about what was in fact in contemplation. That is one example, but it is not this case. Here, the marriage was not merely in prospect or expectation, it was intended and planned with the date set. There was no reason not to mention the marriage expressly to the solicitor had he inquired. It is not necessary that the contemplation of marriage remain active and at the forefront of the deceased's mind to such an extent that it was inconceivable that it was not volunteered to the solicitor. That is more likely where a testator is giving instructions for a new will having already decided how it would operate, rather than first taking the solicitor's advice.

42 The marriage remained planned. There is no reasonable alternative inference open from the failure of the deceased to refer to the planned marriage when instructing the solicitor. The deceased did not reveal to Mr Ajzensztat her contemplation of marriage to the defendant when deciding how her will would be changed because in his conversations with her he did not make it relevant. I am satisfied that, if asked directly, or at least alerted to a need to express her contemplation of a marriage, the deceased would have informed Mr Ajzensztat of the planned marriage. There is no reason not to have done so.

43 It is no answer to say that once marriage moved beyond contemplation to be a planned event that it ceased to be in the mind of the deceased. I would not draw that inference. It is contrary to common sense. It was when the deceased no longer expected the possibility of the marriage, as the evidence of conversations with her children and friends in 2008 reveals, but was actually planning the event that the deceased acted on her intention to ensure that the interests of her children were protected by ensuring that her real estate passed to three of her children and her grandson and not to the defendant. The deceased told the defendant that new wills would protect the entitlements of their respective children. It is significant that the defendant made a will that was complementary, in the sense of achieving the same result for his children. I am satisfied that the deceased clearly intended that her property was for her children. It was a longstanding intention reflected in her prior will and stated to friends in conversation.

44 The probable explanation for the deceased's decision to make a new will was her proposed marriage. She made a provision for her proposed husband, while retaining the gift to her children. She did so shortly after the agreement between them to marry. That marriage was plainly on her mind because despite having been separated from Mr Ward for many years, she had not divorced him. I am satisfied that the deceased had an amicable and comfortable relationship with Mr Ward and she only divorced him to be able to marry the defendant. Filing the divorce application the day after giving instructions for a new will strongly indicates that the deceased was arranging her affairs for her planned marriage.

45 For these reasons, and bearing in mind the whole of the evidence, I am satisfied that the will of the deceased made 25 March 2010 was made in contemplation of her planned marriage to the defendant and was not revoked by the solemnisation of that marriage on 10 October 2010.

46 However, as I noted, that was not the end of the story. In 2011, the deceased was diagnosed with terminal secondary cancer in the bones and lungs. On 28 July 2011, the deceased telephoned Mr Ajzensztat and asked him to prepare financial and medical enduring powers of attorney. During this conversation, the deceased told Mr Ajzensztat that she had married the defendant. Mr Ajzensztat, who said he was surprised to learn of this, recommended that new wills be prepared for both the deceased and the defendant. It may readily be inferred that Mr Ajzensztat had in mind the force of s 13(1) of the Wills Act when he made that recommendation. There is no evidence that Mr Ajzensztat communicated any concern that the March 2010 will had been revoked, explained the basis of his recommendation to the deceased or discussed with her the implications of the marriage on the validity of her will.

47 The deceased instructed Mr Ajzensztat to prepare a new will in substance identical to the one she had executed on 25 March 2010. The only alterations were of the address of the plaintiff, as he had moved house, and the defendant was referred to as her 'husband' rather than her 'partner'. On 29 July 2011, Mr Ajzensztat sent the newly drafted wills and the powers of attorney to the deceased under a covering letter, which stated that it was 'advisable' that new wills be signed. Mr Ajzensztat's file notes are silent as to the details of the advice given to the deceased at this time. I am unable to conclude that the deceased was probably aware that the marriage may have revoked her will and that she might be intestate.

48 Neither the powers of attorney or the will were executed by the deceased. The reason for this is unclear. Because Mr Ajzensztat did not advise the deceased that her will may have been revoked, it is probable that the changes that were made appeared so minor that she saw no need to go to the trouble of executing the will. It is significant that her primary inquiry was to have powers of attorney prepared and these instruments, too, were not executed. There was no further contact between Mr Ajzensztat and the deceased when the solicitor did not receive the executed wills or the powers. I accept that the deceased could have readily executed these documents and did not do so, despite the fact that her health deteriorated rapidly after the secondary cancer was discovered and following unsuccessful surgery. She regularly required oxygen and was using a wheelchair. While the deceased was unwell, she remained mentally alert and capable of making decisions about her will.

49 Mostly, what occurred at this time cannot rationally affect the assessment of the probability that the March 2010 will was made in contemplation of the planned marriage. Again, the probable inference to be drawn from the failure of the deceased to execute the new will prepared in July 2011 follows from the limited advice given by Mr Ajzensztat. I infer that the deceased did not believe her 2010 will to be revoked.

50 What is significant is the fact that she did not intend to change the terms of her will, which is evident from the instructions given. I am satisfied that her intention was, as it had always been since the will that was made in February 2005, that she wanted her children, not her husband, to inherit the Bonbeach property. By reason of that fact, I consider that the inference may more comfortably be drawn that when she made the March 2010 will providing something for her proposed husband while re-expressing her intention that her children inherit her Bonbeach property, the deceased was contemplating her planned marriage to the defendant.

51 I will hear from counsel as to the form of orders required and as to costs.

[1] Re Chase (dec'd) [1951] VicLawRp 67; [1951] VLR 477; Burton v McGregor [1953] NZLR 487; Public Trustee v Crawley [1973] 1 NZLR 695.

[2] (1986) 6 NSWLR 60.

[3] [2004] NSWSC 705.

[4] [2012] WASC 197.

[5] [2011] IEHC 327.

[6] [2004] VSCA 109, [120].

[7] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 141.

[8] Marston v Roe de Fox and Halton [1838] EngR 3; (1838) 8 Ad & E 14 at 28; [1838] EngR 3; 112 ER 742 at 747.