Revocation of wills - Impact of marriage or civil partnership on a will

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Overview

The connection between marriage and will changes is a critical focus for the SQE1 FLK2 exam. This article discusses the legal rules that result in the revocation of wills upon marriage or entering a civil partnership, covering automatic revocation, the implications of divorce or dissolution, and other methods of revocation. Understanding these ideas is vital for future solicitors to provide comprehensive estate planning advice.

Automatic Revocation by Marriage or Civil Partnership

A primary rule in this area is that a will is automatically revoked when the testator marries or enters a civil partnership. This principle is outlined in Section 18 of the Wills Act 1837, as modified by the Administration of Justice Act 1982. The law assumes significant life changes merit reconsideration of a will.

However, this assumption can be avoided if the will includes a clause maintaining its validity despite a future marriage or civil partnership, such as "This will is made in anticipation of my marriage to [name]."

The exception only applies when the will specifically names the future spouse or partner. A vague clause would not prevent revocation.

Example: If Alex had a will leaving everything to a friend, marrying without including a protective clause would revoke it. This illustrates the need for precise clauses when life changes are anticipated.

Effects of Divorce or Dissolution

While a marriage or partnership revokes a will, divorce or dissolution does not. Instead, the law changes how the will functions. Section 18A of the Wills Act 1837, introduced by the Law Reform (Succession) Act 1995, states that after divorce or dissolution:

  1. Any appointment of the former spouse or partner as executor or trustee is treated as if they had died when the relationship ended.
  2. Any gift to the former spouse or partner lapses unless otherwise stated in the will.

This effectively stops them from benefiting or acting under the will unless explicitly stated otherwise.

Notably, these rules apply to legal terminations, not separations; a separated partner would still benefit until divorce.

Revocation by Later Wills or Codicils

A later testamentary document can revoke a will entirely or partially through:

  1. Express Revocation: A new will or codicil may clearly state that it revokes all previous versions.

  2. Implied Revocation: A later will might implicitly revoke an earlier one if its terms are inconsistent.

  3. Partial Revocation: A codicil may change part of a will, leaving the rest unchanged.

The Henfrey v Henfrey case established that an inconsistent later will revokes an earlier one. Yet, clear express clauses are best to avoid disputes.

Revocation by Destruction

A will can be annulled by destruction, as stated in section 20 of the Wills Act 1837. The testator must intend to revoke the will and physically destroy it, or direct someone to do so in their presence.

Methods of destruction include:

  • Burning
  • Tearing
  • Other forms of destruction

The act must coincide with the intention to revoke. If destruction is accidental or without intention, the will might still be probated.

The Cheese v Lovejoy case showed that mistakenly destroyed wills are not revoked if the intent was absent.

Case Study: Revocation Challenges in Blended Families

Consider Dr. Amelia Chen, a surgeon with a complex family. Her will left everything to her children from a previous marriage. After marrying Professor James Taylor and having another child, her will was designed to remain valid post-marriage. Despite this, the will did not account for her new spouse or child, leading to potential claims under the Inheritance (Provision for Family and Dependants) Act 1975.

This case highlights the need for regular will updates to address family dynamics.

Case Study: Conditional Destruction and Intestacy

Emma, who destroyed her will intending to create a new one, demonstrates legal considerations:

  1. Conditional Revocation: If a will is destroyed intending to replace it, but isn't, it may remain if contents are proven.

  2. Animus Revocandi: Both physical destruction and the intent to revoke are necessary for effective revocation.

  3. Burden of Proof: Those claiming revocation must prove Emma's intent to revoke unconditionally.

  4. Intestacy Consequences: If Emma's will's destruction is deemed effective and unreplaced, intestacy rules will apply, potentially conflicting with her wishes.

Application to Legal Practice

Key tasks for solicitors include:

  1. Client Communication: Regularly informing clients about how life changes affect wills.

  2. Drafting Precision: Crafting clauses to avoid unintended revocation, especially before new marriages or partnerships.

  3. Review and Update: Setting up a process for regular will reviews to match current needs.

  4. Documenting Intentions: Clearly stating clients' wishes regarding will changes, especially with relationship shifts.

  5. Risk Management: Advising clients on the risks of informal will changes.