Sambucco: Revocation of a Will by marriage

Mar 24, 2021

Many people are not aware that a marriage can revoke a Will. Similarly, a divorce can invalidate appointments and gifts in a Will to the spouse. Sambucco v Registrar of Births, Deaths and Marriages Victoria & Anor [2020] VSC 889 (Sambucco) is a recent proceeding and a timely reminder about this. The Court explored several interesting estate planning and administration issues in this case.

Case summary

The deceased, Mark Sambucco, married Mara Sambucco on 8 June 2019 in a ceremony conducted by an authorised celebrant. Mark died on 9 September 2019 from a terminal illness, around 3 months after his marriage. The marriage was registered on 10 December 2019.

This case was filed by Mark’s brother, Robert Sambucco – who sought an order quashing the issuance of the marriage certificate and the registration of Mark’s marriage to Mara.

Before Mark’s marriage, he signed a Will in 2015. This Will established a testamentary trust which included Robert and other members of his family within the class of beneficiaries. However, the Wills Act outlines that “A will is revoked by the marriage of the testator”. Therefore, Mark’s 2015 Will was revoked when he married Mara resulting in him dying intestate – that is, without a Will.

As Mark died intestate, his wife, Mara, has the greatest entitlement to his estate allowing her to apply for a grant of Letters of Administration. As Mark’s Will was revoked, Robert and his family were unable to receive the benefit of Mark’s estate outlined in his Will.

Although Robert’s application was brought out of time, her Honour stated at paragraph [41]:

“…the registration of the marriage and issue of certificate by the Registrar does not provide conclusive evidence of whether or not a marriage occurred for purposes of s 13 of the Wills Act.” 

It is therefore the solemnisation of a marriage that revokes a Will, rather than the issuance of a marriage certificate or registration. This places an added importance of reviewing your estate planning in contemplation of the marriage ceremony to ensure that your wishes are fulfilled.

If you need any assistance with your estate planning, please contact Kimi Shah or Lisa George.