The effect of marriage, civil partnerships, divorce and dissolution on the validity of a will

Meg Edwards, Solicitor, and Sarah Bolt, Senior Associate in the Contested Wills, Trusts and Estates team discuss the impact of marriage, civil partnerships, divorce, and dissolution on the validity of a will.

Marriage and civil partnership

As a starting point, the general rule is that marriage or civil partnership will revoke any will made prior to a marriage or civil partnership. This is set out in Section 18 of the Wills Act 1837 (as substituted by section 18(1) Administration of Justice Act 1982) and is the case even if the testator’s intentions may have been different.

There are exceptions to the general rule of a will being revoked on entering a marriage or civil partnership. These exceptions include:

1. if the will was made in contemplation of marriage; or
2. if the testator exercised a power of appointment in the will.

In these cases, the will is not necessarily revoked. However, in the case of a will being made ‘in contemplation of marriage’ it is imperative that the will makes clear:

1. the name of the future spouse or civil partner;
2. whether the will is to be revoked on marriage or civil partnership; and
3. whether the will is conditional on the marriage or civil partnership taking place.

Dissolution and divorce

The effect of marriage or civil partnership on a will is something you may have considered. However, the effect of divorce or dissolution may not be as widely considered. On divorce (and following the preparation of a will), Section 18A of the Wills Act 1837 provides that:

• provisions of the will appointing executors or trustees or conferring a power of appointment, if they appoint or confer the power on the former spouse, shall take effect as if the former spouse had died on the date on which the marriage is dissolved or annulled; and
• any property which, or an interest in which, is devised or bequeathed to the former spouse shall pass as if the former spouse had died on that date.

For the purposes of a will, for all intents and purposes, on divorce the former spouse or civil partner is treated to have died as at the date of divorce or dissolution. Any powers or entitlement given to the former spouse or civil partner in the will are revoked, provided there is no contrary intention or provision contained within the will.

By way of an example: Re Sinclair, deceased CA [1985] EWCA J0227-2. The deceased and his former wife were married in 1953. The deceased made his will in 1958, with their marriage being dissolved by way of a decree absolute in 1962. The deceased passed away in 1983 (after the Administration of Justice Act 1982 came into force). A clause in his will stated that should his wife predeceased him or not survive him for one month, that his estate would be left to the Imperial Cancer Research Fund. The Court held that the testator’s estate was to fall under the intestacy rules to his brother as the will failed to deal with the event of their divorce in his will.

Inheritance claims following divorce and dissolution of civil partnerships

A divorce or dissolution order should be reviewed to determine whether a former spouse may bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) though normally orders will include provision that there is no such right to do so. Though section 1(1)(b) of the Act lists ‘a former spouse or former civil partner’ as a person entitled to bring a claim, section 15 of the Act precludes their ability to do so should there be a divorce or dissolution order to the contrary.

However, in the case of Chekov v Fryer [2015] EWHC 1642 (Ch) a husband and wife had divorced, the terms of the divorce order stated that neither was entitled to bring a claim under the Act unless they remarried (each other). The husband died, leaving his estate to his sons from a previous marriage under the terms of his will. However, following their divorce, the wife continued to co-habit with her ex-husband and upon his death, claimed that she was entitled to reasonable financial provision from his estate. The Court held that the ex-wife was entitled to bring a claim as a cohabitee, despite the fact that the parties had expressly excluded each other’s ability to do so in the divorce order.

Preparing a new will following divorce/dissolution of a civil partnership

Should a testator wish to prepare a new will following divorce or dissolution of a civil partnership, it is advisable that an entirely new will be written rather than a codicil attaching to the original will. The reason for this being that although a codicil amends a will, it will also republish the original will on the date it is signed (Section 34 of the Wills Act 1837). This may therefore be viewed as the testator acknowledging the validity of their former spouse’s appointment (as executor or trustee) and/or their entitlement under the will.

It is also important to note that a codicil cannot amend a will already revoked by marriage and therefore in this situation it is essential that a new will be prepared.