How BIG DAYS and BIG BUST-UPS can affect the operation of your Will


“DING DONG the bells are going to chime” will soon be ringing out across the nation as couples dream not only of a white Christmas but also of a magical white wedding. Amongst the invitation writing, dress fittings and flower arranging in the run up to the big day there is a real chance that important matters can get overlooked, especially your will. It would therefore be a prudent investment of time to investigate and understand the effects that getting married, and indeed divorced, have on what you leave behind to your loved ones.

The basic effect of marriage or formation of a civil partnership on a will is that it will immediately become invalid and be automatically revoked (s18, Wills Act 1837). This means that should you marry after executing a will and then die without making a subsequent will, you will be treated as having died intestate. Consequently, any special provisions, donations or specific gifts will not be honoured and your estate will become subject to Intestacy Rules.

An exception to the rule occurs where a will is made in contemplation of marriage but this type of will needs particular wording. A contemplation of marriage clause is found in wills that are created prior to a forthcoming marriage or civil partnership with a particular person where the testator does not intend the marriage to revoke the will. For the operation of such clauses to be effective, they must meet some minimum requirements.

  1. The will maker (i.e. the testator) needs to name the individual they are intending to marry or form a civil partnership with. In the case of Court v Despallieres [2009] EWHC 3340 (Ch), The High Court found that an executed will had been revoked in the absence of the testator specifying the person he intended to enter a civil partnership with. The will only contained a general statement that the will should survive any subsequent civil partnership and did not show that the testator expected to form a civil partnership.
  2. In the case of Re Gray’s Estate [1963] a testator finally married his wife 25 years after making his will. The court held that the length of time which was allowed to elapse between the executing of the will and the subsequent marriage indicated that the will was not created in contemplation of marriage and therefore the will was invalid. Therefore, there is a need for the marriage or civil partnership to come into effect within a reasonable time of executing a will.

Due to the implementation of the Marriage (Same Sex Couples) Act 2013 a marriage may, since 29 March 2014, be between a same sex couple as well as an opposite sex couple. There was at the time some concerns as to whether same sex couples who converted their civil partnerships to marriages would have their wills revoked. Subsequently, it was implemented that where a civil partnership is converted to a marriage, the conversion would not revoke an existing will of either party nor affect any disposition of the will.

Whilst your big day can have major changes to your will so can big bust-ups. Where a testator makes a will and is later divorced (or civil partnership dissolved) the will shall remain valid save for certain provisions. Any provisions which leave any property to the former spouse or act to appoint a former spouse as executor or trustee take effect as if the former spouse had died on the date on which the marriage was legally terminated. Therefore, keeping your will up to date in line with your personal life is a very important job and should not be underestimated.

Jack Hobbs

Commercial Disputes

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