In this article, we examine the Law Commission’s consultation on whether marriage should continue to revoke an existing Will (“the Consultation”).
As part of this article, we will consider the:
(a) current law on revoking a Will,
(b) Law Commission’s last consultation on this topic (and why they feel the need to re-consult),
(c) Law Commission’s views,
(d) questions posed in the consultation paper, and
(e) next steps.
This is the second of our articles considering the Law Commission’s Consultation on Wills. For our first article on the potential introduction of ‘electronic Wills’ see here. The Consultation, and this article, deals with the law of England and Wales only.
1. Current law on revoking a Will
Under section 20 of the Wills Act 1837, there is an assumption that mere conduct by a testator (the person who makes a Will) will not result in the revocation of their Will. There are though five ways by which a Will may be revoked (completely or partially):
1.1 Creating another Will or Codicil
It is common practice for a Will to state that it revokes any existing Wills and Codicils. Testators should be careful when executing new Wills if they have separate Wills in place that deal with foreign assets as these might otherwise be inadvertently revoked.
1.2 Express revocation in writing
It is possible to sign a document stating that any existing Will is revoked but do no more than this (i.e. it does not set out any new terms for how that person’s estate should be dealt with). Given that the formalities have to be the same as those for a Will (discussed in our recent legal update concerning electronic Wills), this option is rarely used.
1.3 Destruction
A Will can be revoked by “burning, tearing or otherwise destroying the [Will] by the testator or by some person in his presence and by his direction with the intention of revoking [it]”. However, if just part of the Will is destroyed, only those parts will be revoked (unless the destroyed part includes the signature, in which case the entire Will is revoked). The destruction must be done with the intention of revoking the Will, so accidentally destroying it will not result in revocation. For this reason, if a person wishes to revoke their Will by destruction, it is advisable to accompany the destruction with some form of written record that this was done intentionally.
1.4 Divorce or annulment
Divorce or annulment of a marriage does not revoke a Will. Instead, the Will is read as if that former spouse had died. Therefore, where divorce occurs, it is important to check that a Will still deals with a person’s estate as they wish and that all of their assets are dealt with so that the intestacy rules do not apply.
1.5 Marriage or civil partnership
We then come to the last method of revocation – and the one most relevant to this article. Section 18 of the Wills Act 1837 includes a general rule that “a will shall be revoked by the testator’s marriage” (“the Rule”). Since 2005, the “formation of a civil partnership between the testator and another person” has the same effect as marriage. For brevity, these will both be referred to as ‘marriage’.
If a testator marries abroad, their Will is also revoked if the marriage is recognised as valid by the law of England and Wales.
There are two exceptions to the Rule. If the testator:
(a) makes it clear that they are expecting to marry soon and that they were making the Will in contemplation of this marriage, or
(b) converts their civil partnership into a marriage,
then the Will shall not be revoked by the marriage.
Therefore, if someone marries without falling into the two exceptions, any existing Will is automatically revoked in its entirety. If they then died without putting in place a new Will, they would die intestate. The intestacy rules that apply in this instance may not reflect how the deceased would have wished for their estate to be distributed and may also have adverse tax consequences (such as part of their estate not passing spouse exempt and then being subject to inheritance tax).
The fact that marriage revokes a Will is seen by some as an anomaly. The bar for mental capacity to marry is arguably much lower than the level of mental capacity that is needed to make or revoke a Will. By entering into marriage, it may therefore be possible for someone to understand the nature and implication of marriage in broad terms (including that it would revoke their Will), but then not have capacity to put in place a new Will after that marriage.
2. Law Commission's last consultation
In 2017, the Law Commission consulted on the issue of automatic revocation of Wills by marriage. Within the 2023 consultation, they note that back in 2017:
“few consultees supported abolition of the rule that a marriage revokes a will: only a small percentage were in favour of abolition, with the majority in favour of retention of the rule...”
Their decision to re-consult on the topic despite the above result stems largely from an apparent increase in “predatory marriages” – which the Consultation defines as “one where a person marries someone, often someone who is elderly or who lacks the mental capacity to marry… to inherit from them, which, unfortunately, is facilitated by” the Rule. Upon the Will being revoked and the death of the abused party, the abuser is then rewarded by the intestacy rules (coming into effect due to the absence of any replacement Will).
The intestacy rules differ depending on the deceased’s family (whether they have any children and the value of their estate) but broadly a surviving spouse inherits all the estate (for estates worth £250,000 or less) or in other cases up to all chattels, a statutory legacy of a minimum amount of £322,000 plus half of the remainder of the estate.
3. Law Commission's views
In the Law Commission’s view, the Rule should be “closely considered”. In addition to the predatory marriage point above, they cite the following reasons for this:
(a) Lack of knowledge of the Rule (the Law Commission cite a study that found that only 16% of people know that marriage revokes a Will).
(b) Belief that the Rule is now “out of step with current societal norms”. Namely, they question whether marriage holds the weight in today’s society to warrant being the only way in which a Will can be revoked without the testator’s express intention.
(c) Changes in society that mean the Rule is no longer appropriate. For example, long-term cohabitation and the purchase of a home prior to marriage have both increased. Both of these trends increase the likelihood of having a Will in place prior to marriage, with the Will being intended to stay in place beyond the marriage.
Ruling out other proposed changes
Not only do the Law Commission suggest all of these reasons for a potential change to the Rule, they also conclude that some of the proposed changes (i.e. falling short of a complete revocation of the Rule) are either insufficient or inappropriate to mitigate the concerns identified. These (rejected) changes include:
(a) Specific exception to the Rule for “those who lack testamentary capacity at the time of their marriage”. Rejected on the basis that this would “not be workable”, i.e. cannot expect the marriage officer to assess this as part of their duties.
(b) Widening of the ‘in contemplation of marriage’ exception to any future, unforeseen marriage. Whilst they accept some uses of this, they note that it provides no specific protection against predatory marriage, which they identify as their chief concern regarding the Rule. The widening of the exception may be ineffectual too, on the basis that so few people know of the Rule itself (so wouldn’t know to make use of the wider exception).
Relevance of the 1975 Act
The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) allows certain classes of people (e.g. spouse and descendants) who were financially supported by the deceased to make a claim for an additional sum of money where “reasonable financial provision” has not been made for them under the terms of the Will (or intestacy).
The Law Commission point to the 1975 Act as being able to mitigate some of the potential harm that the Rule being removed may have. They consider that the new spouse (who may be due to receive nothing under the testator’s pre-marriage Will, which would now remain in place due to the Rule being abolished) would likely be able to make a successful claim for family provision under the 1975 Act. The Law Commission note that the spouse is much more likely to be able to bring a successful claim, in contrast to someone who received nothing through the intestacy rules but had an otherwise strong moral claim to an inheritance. Finally, on the 1975 Act, the Law Commission consider that any increase in 1975 Act claims would likely be “modest” as many claims would be settled out of Court given the likelihood of the Court favouring (genuine) spousal claims were they to reach Court.
Overall, whilst the Law Commission do not expressly advocate for the abolition of the Rule, they: (1) provide several arguments in support of this happening, (2) rebut two of the alternatives to abolition, and (3) argue that any injustice caused by the abolition can be mitigated by existing statutory rights.
4. Law Commision's questions
To conclude the Consultation, the Law Commission pose two questions:
(a) Predatory marriage. Asking for views and evidence on the prevalence of it within society.
(b) Abolition of the Rule. Asking for views on whether the Rule should be abolished.
5. Next steps
The deadline to respond to the Consultation closed on 8 December 2023.
While the Rule is not widely known, a decision to abolish it could cause more confusion. We await the Law Commission’s follow-up paper summarising the responses to the consultation.
This article was written by Callum Duckmanton (Trainee Solicitor in our Private Client team) and Andrew Kerr (Senior Associate in our Private Client team).