Learning Outcomes
This article examines the impact of marriage, civil partnership, and relationship breakdown on the validity and operation of wills in England and Wales. It explains the rule of automatic revocation under the Wills Act 1837, the separate provision for civil partnerships, and how these rules apply to codicils. It details the statutory exception for wills made in contemplation of marriage or civil partnership to a named person, including how to draft clauses that preserve the whole will or only specified dispositions. It analyzes the treatment of general drafting formulae, the survival of exercises of powers of appointment, and the special rule where a civil partnership is converted into a marriage. It reviews the effect of divorce or dissolution on gifts, appointments, and substitutional provisions, distinguishing it from separation. It also covers revocation by later will, codicil, or destruction, and the resulting risks of total or partial intestacy. Throughout, it emphasizes how to identify and apply these rules in SQE1-style problem questions, including spotting issues, stating the correct statutory provision, and reaching a reasoned conclusion.
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, with a focus on the following syllabus points:
- 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
- the ability to preserve all or part of a will on marriage/civil partnership by clear wording saving the whole will or only specified dispositions
- the statutory saving for the exercise of a power of appointment by will
- the effect of converting a civil partnership into a marriage (which does not revoke an existing will)
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.
Under the Wills Act 1837 as amended, section 18 provides for automatic revocation by marriage and section 18B provides the same for the formation of a civil partnership. The effect is immediate on the legal formation of the marriage or civil partnership. Codicils are testamentary dispositions and will generally fall with the will unless the whole instrument is saved under the statutory exception. The key practical consequence where no new will is made is that the estate may pass instead under the intestacy rules, sometimes only in part (partial intestacy).
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.
This rule operates across all marriages and civil partnerships recognised in England and Wales, including opposite-sex civil partnerships (introduced in 2019). It is the act of entering into the legal relationship—not an engagement—that revokes the will. Revocation is total unless a statutory saving applies (see below). A will revoked in this way cannot be revived except by re-execution or by a subsequent valid testamentary instrument.
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.
The statute requires that it “appears from the will” that the testator was expecting to marry or form a civil partnership with a particular person and intended that the will should not be revoked by that event. The test is internal to the document—extrinsic evidence (for example, engagement announcements or photographs) cannot be used to cure silence on the point. The expectation need not be realistic, but it must relate to a particular person.
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.
- It is possible to save only specific dispositions from revocation. The will may expressly provide that certain gifts will continue to take effect on the marriage or civil partnership while other parts are to be revoked on that event.
- A general statement such as “this will is not to be revoked by any marriage/civil partnership” is insufficient because it fails to identify the particular person.
A robust drafting formula often used is: “I make this will in expectation of my marriage to [full name] and intend that it shall not be revoked by that marriage.” Where only part of the will is to be preserved post-marriage, drafters may divide the will into sections and state which parts are to continue on marriage (for example, by using schedules referenced in the will).
Other statutory savings
Even if a will is revoked on marriage or civil partnership, the law preserves the exercise of a power of appointment by will in many cases. If the will merely exercises a power of appointment (and the appointed property would not otherwise pass to the testator’s personal representatives in default of appointment), that exercise is not revoked by subsequent marriage or civil partnership.
Finally, converting a civil partnership to a marriage does not revoke an existing will. This is specifically addressed in legislation to prevent inadvertent revocation on conversion.
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.
Worked Example 1.3
Scenario:
Amir’s will states, “This will is not to be revoked by any subsequent marriage.” A year later, Amir marries Leila.
Answer:
The statement is too general. The will does not name the specific person. The marriage to Leila revokes the will because the statutory exception requires contemplation of marriage to a particular person and a clear intention that the will is not to be revoked by that specific marriage.
Worked Example 1.4
Scenario:
Florence makes a will stating, “I make this will in contemplation of my marriage to Daniel and intend that it shall not be revoked by that marriage.” She later marries Jason.
Answer:
The will is revoked. The will contemplated marriage to Daniel, not to Jason. A marriage to someone other than the named person does not fall within the exception.
Worked Example 1.5
Scenario:
Maya’s will contains: “I make this will expecting to marry Noah. I intend that the provisions in Schedule A are not revoked by my marriage, but the provisions in Schedule B are revoked on marriage.” She later marries Noah.
Answer:
The will survives marriage to the extent of Schedule A but not Schedule B. The statute allows the testator to specify that only particular dispositions will continue post-marriage; the rest of the will is revoked as stated.
Worked Example 1.6
Scenario:
Under a family settlement, Oliver holds a power to appoint capital among his nieces and nephews. He exercises the power by will in favour of his nephew, stating nothing about marriage. Later he marries.
Answer:
The exercise of a power of appointment by will generally survives marriage or civil partnership unless the appointed property would pass to Oliver’s personal representatives in default of appointment. If the default would have been to other beneficiaries (not to Oliver’s estate), the appointment remains effective.
Worked Example 1.7
Scenario:
Two years into their civil partnership, Sam and Evan convert their civil partnership into a marriage. Sam’s will was made before the conversion and does not refer to it.
Answer:
The conversion of a civil partnership into a marriage does not revoke an existing will. Sam’s will continues to operate according to its terms.
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.
This statutory fiction cures a historical problem where a “lapse” on divorce did not automatically trigger substitutional gifts. Now, standard survivorship or substitutional provisions take effect because the former spouse/civil partner is deemed to have predeceased. Separation alone does not affect the will; a court order dissolving or annulling the marriage/civil partnership is required. The will can express a contrary intention, preserving a gift or appointment despite divorce or dissolution.
Consequences
- Gifts to the former spouse or civil partner lapse by statutory fiction, as they are deemed to have predeceased.
- Appointment of the former spouse or civil partner as executor or trustee fails for the same reason.
- Substitutional provisions (e.g., “to my spouse, but if they predecease me then to X”) now take effect because the former spouse/civil partner is treated as having predeceased.
- The rest of the will remains valid.
Worked Example 1.8
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.
A revocation may also be made by “some writing” executed with the formalities of a will, declaring an intention to revoke. As a drafting matter, using a clear express revocation clause in a properly executed will is the safest approach to avoid argument.
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.
An accidental destruction is ineffective. Symbolic acts (e.g., writing “revoked” across the will) are not enough unless a material part is destroyed so that the will cannot operate (for example, removing the testator’s signature). If someone else destroys the will, it must be in the testator’s presence and at their direction to be effective.
Worked Example 1.9
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.
Where revocation produces a partial intestacy (for example, divorce removes a spouse’s gift but residue is not otherwise disposed of), the undisposed portion of the estate will pass under intestacy. In such cases, statutory trusts arise over the undisposed property and personal representatives must administer and distribute according to the statutory order of entitlement. In practice, this can be significantly different from the testator’s original intentions and may cause delay and additional expense.
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.
- The will may save all dispositions or only specific dispositions from revocation by marriage/civil partnership if it clearly says so.
- A general statement that a will is not to be revoked by any marriage is insufficient; it must identify the particular person.
- The exercise of a power of appointment by will is generally not revoked by marriage or civil partnership (subject to the default of appointment).
- Converting a civil partnership into a marriage does not revoke an existing will.
- 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, potentially creating partial intestacy.
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