Revocation Of Wills By Marriage
There is much discussion underway regarding the Law Commission’s supplemental review of their Making a Will report. One aspect of the review is whether to change the law in England and Wales from the rule that a marriage revokes a prior Will unless made in contemplation of that marriage. This would bring the law in England and Wales in line with Scotland and other countries.
So far, the debate has focused on the need to protect the vulnerable from predatory marriages; that is a marriage designed to secure financial advancement by revoking any previous Will that might have benefitted the vulnerable person’s family, to obtain more if not all of the estate of the deceased under the law of intestacy.
No-one has mentioned that many of the countries which have the rule that a marriage does not revoke a Will are Civil Code countries that provide for a spouse through their matrimonial property regime and protect forced heirs too. We have no matrimonial property regime so in a case like McElroy v McElroy  EWHC 109, if the new rule was introduced , we would be in danger of disadvantaging a different group of spouses: where the second spouse would have lost out to someone else – in that case to the deceased’s brother under an old Will made whilst the deceased was single.
Capacity To Marry
The vulnerable do need protection from abuse but why not investigate the sorry state of the law on capacity to marry as a means of addressing predatory marriage, or introduce a specific law regarding the equivalent of a forced marriage (which would make a predatory marriage void) or introduce a specific law on undue influence in relation to testamentary cases?
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The Court of Protection has examined the question of capacity to marriage in several cases:
- London Borough of Southwark v KA,  EWCOP 20 – the legal test set out in this case was as follows:
- It is status specific rather than person specific
- Wisdom of the marriage is irrelevant
- P must understand the broad nature of the marriage contract
- P must understand the duties and responsibilities that normally attach to marriage, including financial consequences, status and connection of spouses
- The essence is to live together and to love one another
- P must not lack capacity to enter into sexual relations
- Re DMM  EWCOP 33 – it was held that a person should be able to understand, retain, use and weigh the specific fact that marriage revokes a Will. The use of a caveat entered at the Registry office under s.29(1) Marriage Act 1949 prevented the marriage from taking place until the issue could be investigated.
- Mundell v Name 1  EWCOP 50 – Mostyn J disagreed that there was a requirement for the parties to live together and love one another as a requirement for marriage. He did recognized that this was common but said:
“There are plenty of examples, both in the distant past and more recently, of marriage being created where the parties like each other could not be said to love each other: where their relationship is one of platonic friendship rather than one of passion. Moreover, there are plenty of examples in this modern age of parties marrying where they do not share a common home or a common domestic life but, nonetheless, their marriage is well and truly a marriage.”
What conclusions are we to draw from this case law?
- The capacity threshold for a person to marry is merely that they are capable of a rudimentary understanding of the financial consequences.
- That there is no appetite to burden Registrars of Marriage with the need to undertake a capacity assessment before agreeing to marry a vulnerable person.
- There is a desire to have only a low barrier for a person to be competent to marry so that those with learning difficulties and the frail elderly can choose marriage if they wish.
Suggesting the rule of revocation of a Will by marriage should be reversed without considering the surrounding infrastructure seems as reckless and likely to create another group of people who would be potentially disadvantaged as doing nothing to address predatory marriage would be.
Lifetime gifts made under undue influence are voidable and can be set aside where the person subject to the undue influence chooses to do so. In the case of presumed undue influence (e.g. by a child to a parent; beneficiary to a trustee; follower to a spiritual adviser; patient to a medical adviser and by a client to a solicitor) it is possible for one party to influence another where the parties are in a relationship of influence and a transaction calls for explanation. Where the presumption is raised it is up to the party seeking to retain the gift to show that he or she did not exert undue influence.
The law of undue influence that applies in relation to testamentary gifts is different as there is no presumed undue influence in certain relationships, so it is more difficult for a Will to be set aside on the grounds of undue influence than it is for a lifetime gift. There is no presumption of undue influence between spouses or in gifts made by a parent to a child. There has to be evidence of actual undue influence and the burden of proof is on the person challenging the Will to prove undue influence.
The Law Commission in their original Making a Will report at paragraph 7.106 said:
“We have provisionally concluded, therefore, that there is a need for a specific, statutory form of testamentary undue influence that can focus on the particular harm that undue influence seeks to present in the testamentary context.”
What Might Work?
- If we had a statutory test for capacity to marry – after all the Law Commission is advocating a statutory form for undue influence in testamentary situations.
- The retention of the existing rule that a marriage will revoke any earlier Will unless that Will is made in contemplation of that marriage.
- Clearer guidance about the consequences of the existing rule of revocation for individuals, charities and professionals.
- A greater willingness amongst the judiciary to declare a marriage void.
- Guidance for Registrars on the need to identify vulnerable individuals and the use of a caveat preventing marriage.
- Guidance on the type of evidence which would be required to declare a marriage void.
In the event that the above suggestions are not adopted, and the revocation rule is reversed, let’s remember that there will be some genuine marriage partners who may lose out and will be faced with the cost and emotional strain of having to bring court proceedings under Inheritance (Provision for Family & Dependents) 1975, always assuming they can if the deceased died domiciled in England & Wales.
Before any major change in the law occurs would it not be prudent to obtain objective evidence of how many people might be affected by the current law and by any proposed change?
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