Learning Outcomes
After reading this article, you will be able to explain how marriage or civil partnership affects the validity of a will, identify the statutory exceptions to automatic revocation, and apply the relevant rules to practical SQE1-style scenarios. You will also understand the consequences of failing to update a will after marriage, and how to draft or advise on wills made in contemplation of marriage or civil partnership.
SQE1 Syllabus
For SQE1, you are required to understand the legal consequences of marriage or civil partnership on the validity of wills, including the statutory rules, exceptions, and practical implications for clients. In your revision, focus on:
- the rule of automatic revocation of wills by marriage or civil partnership under the Wills Act 1837
- the requirements for a will to survive marriage or civil partnership (wills made in contemplation)
- the effect of divorce or dissolution on existing wills
- the practical consequences of revocation, including intestacy and partial intestacy
- how to advise clients on updating or drafting wills in light of marriage or civil partnership
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the effect of marriage or civil partnership on a will that does not mention the forthcoming event?
- How can a will be drafted to remain valid after a planned marriage or civil partnership?
- What happens to gifts to a former spouse or civil partner after divorce or dissolution?
- True or false? A general statement that a will is not to be revoked by marriage is sufficient to prevent revocation.
Introduction
When a client marries or enters into a civil partnership, the law presumes that their personal circumstances have changed so significantly that any previous will may no longer reflect their wishes. For this reason, English law provides that marriage or civil partnership will automatically revoke an existing will, unless a specific exception applies. Understanding these rules is essential for SQE1 and for advising clients in practice.
Automatic Revocation by Marriage or Civil Partnership
The general rule is that a will is automatically revoked when the testator marries or forms a civil partnership. This is set out in section 18 of the Wills Act 1837 (as amended), and applies regardless of the testator’s intentions, unless the will was made in contemplation of that specific marriage or civil partnership.
Key Term: automatic revocation The rule that a will is made invalid by the testator’s subsequent marriage or civil partnership, unless an exception applies.
The Rationale
The law assumes that marriage or civil partnership is a major life event that may alter the testator’s intentions about who should benefit from their estate. To avoid unintended consequences, the law revokes any prior will, unless the testator has made clear provision for the new relationship.
Exception: Wills Made in Contemplation of Marriage or Civil Partnership
A will is not revoked by marriage or civil partnership if it is made in contemplation of that specific event. The will must state clearly that it is made in contemplation of marriage or civil partnership to a named person. General statements are not sufficient.
Key Term: will in contemplation of marriage or civil partnership A will that expressly states it is made in anticipation of marriage or civil partnership to a particular person, and is therefore not revoked by that event.
Requirements for the Exception
- The will must refer to the expected marriage or civil partnership with a specific person.
- The intention that the will is not to be revoked by the marriage or civil partnership must be clear from the will itself.
- If the testator marries or enters a civil partnership with someone other than the named person, the will is revoked.
Worked Example 1.1
Scenario:
Sophie makes a will leaving her estate to her brother. She later marries Alex, but her will does not mention the marriage or Alex by name.
Answer:
Sophie’s will is automatically revoked by her marriage to Alex. Unless she makes a new will after marriage, her estate will pass under the intestacy rules.
Worked Example 1.2
Scenario:
James makes a will stating, “This will is made in contemplation of my marriage to Priya and is not to be revoked by that marriage.” He later marries Priya.
Answer:
James’s will is not revoked by his marriage to Priya. The will remains valid after the marriage because it meets the statutory requirements.
Effect of Divorce or Dissolution
Divorce or dissolution of a civil partnership does not revoke a will, but it does affect gifts and appointments in favour of the former spouse or civil partner. The law treats the former spouse or civil partner as having died on the date of the divorce or dissolution for the purposes of the will.
Key Term: effect of divorce or dissolution on a will After divorce or dissolution, gifts to the former spouse or civil partner and their appointment as executor or trustee are treated as if they had predeceased the testator, unless the will states otherwise.
Consequences
- Gifts to the former spouse or civil partner lapse.
- Appointment of the former spouse or civil partner as executor or trustee fails.
- The rest of the will remains valid.
Worked Example 1.3
Scenario:
Maria leaves her entire estate to her husband, appointing him as sole executor. They later divorce, and Maria does not update her will.
Answer:
The gift to her former husband lapses, and he cannot act as executor. Unless Maria’s will names alternative beneficiaries or executors, her estate will be partially intestate.
Revocation by Later Will or Codicil
A will can also be revoked by making a new will or codicil. The new will should contain an express revocation clause, but even without one, any inconsistent provisions will revoke the earlier will to the extent of the inconsistency.
Key Term: express revocation A clause in a new will or codicil that clearly states all previous wills and codicils are revoked.
Key Term: implied revocation Revocation of an earlier will or codicil by inconsistent provisions in a later will, even if there is no express revocation clause.
Revocation by Destruction
A will may be revoked by destruction if the testator, or someone acting in their presence and at their direction, destroys the will with the intention of revoking it. Both the physical act and the intention must be present.
Key Term: revocation by destruction The act of physically destroying a will (e.g., burning, tearing) with the intention to revoke it, which makes the will invalid.
Worked Example 1.4
Scenario:
Omar tears up his will intending to make a new one, but dies before signing the new will.
Answer:
Omar’s will is revoked by destruction. If no new will is validly executed, his estate will pass under the intestacy rules.
Practical Consequences of Revocation
If a will is revoked by marriage, civil partnership, or destruction, and no new valid will is made, the estate will be distributed according to the intestacy rules. This may result in outcomes the testator did not intend, especially in blended families or where there are children from previous relationships.
Exam Warning
If a client marries or enters into a civil partnership and does not update their will, the previous will is revoked unless it was made in contemplation of that specific event. This can lead to unintended partial or total intestacy.
Revision Tip
Always check for clear wording in a will made before marriage or civil partnership. If the will does not mention the forthcoming event and the named person, advise the client to make a new will.
Key Point Checklist
This article has covered the following key knowledge points:
- Marriage or civil partnership automatically revokes a will unless the will is made in contemplation of that specific event.
- The exception requires the will to state clearly that it is made in contemplation of marriage or civil partnership to a named person.
- Divorce or dissolution does not revoke a will, but gifts and appointments in favour of the former spouse or civil partner are treated as if they had predeceased the testator.
- A will can also be revoked by making a new will or codicil, or by destruction with the intention to revoke.
- If a will is revoked and no new valid will is made, the estate passes under the intestacy rules.
Key Terms and Concepts
- automatic revocation
- will in contemplation of marriage or civil partnership
- effect of divorce or dissolution on a will
- express revocation
- implied revocation
- revocation by destruction
