Insights

Wills in Contemplation of Marriage


08/04/2011

Whilst few of us can expect a bank holiday to commemorate our wedding, we should all, including a certain prince, be aware that marriage or civil partnership will revoke any will we have in place.

Although compiling the guest list, planning the reception and deciding what to wear are more pressing (and indeed more exciting) than reviewing or making your will, it is something that should be considered. If you already have a will, it would be a shame to see careful planning go to waste if it were to be invalidated upon the words ‘I do,’ at your wedding/civil partnership. If you don’t already have a will, this is a perfect time to consider drawing one up.

If you do not review matters and subsequently die, then you will be considered to be intestate and your estate will be distributed according to the Intestacy Rules. The rules are very rigid and only provide for blood relations and only in a strict statutory order. So, stepchildren, friends or godchildren receive nothing and only certain family members are considered. Further, it is by no means sure that your new spouse/civil partner will inherit the bulk of your estate.

So what can be done? Section 18 of the Wills Act 1837 allows a will to be drawn up “in contemplation of marriage to a particular person.” Under the terms of the Civil Partnership Act 2004, from 5th December 2005, this provision was extended to include wills drawn up “in contemplation of a registered civil partnership to a particular person.”

It may sound a little old fashioned but it is a useful tool to allow you to put your affairs in good order at a time when you are making plans. Prince William would be well advised to start looking at this now if he has not already! If you draw up a will in contemplation of your marriage/civil partnership and follow the guidance provided, then your subsequent marriage/civil partnership to the person you have named, will not revoke that will.

It is especially important to consider drawing up a will in contemplation of marriage/civil partnership where you already have children from another marriage or relationship. This will help to balance the need to protect your children as well as your future spouse/civil partner.

You should get proper advice to ensure that the conditions in s.18 are followed and that the will is not revoked upon the marriage/civil partnership. In brief, these conditions are:-

1. The will must name a specific person and must not be expressed to be in contemplation generally of a future marriage or civil partnership. (It is not enough to expect to marry in general – Sallis v Jones [1936].)

2. The marriage/civil partnership must be due to take place in the foreseeable future.

  • In the case of Re Gray’s Estate [1963], the testator made a will in 1935 benefiting ‘my wife’. They weren’t married and only living together. They did marry but 25 years later, in 1960. The judge held that the will could not be in contemplation of this marriage as the marriage took place too long after making the will. The will was thus revoked by the marriage in 1960. The lesson to be learnt, therefore, is to tie the knot sooner rather than later!
  • Conversely, in the case of Pilot v Gainfort [1931], where the testator drew up a will which gave “to Diana Featherstone Pilot, my wife, all my worldly goods”. This will was held to be valid on their subsequent marriage three years later. This was due to it being a shorter period and there was the added element that the testator could not marry until it was presumed by law that his first wife was dead (she had disappeared some years earlier).

3. Lastly, there must be an intention on the part of the testator that the will should not be revoked by the subsequent marriage/civil partnership and that this is expressly stated in the will.

Although such cases are always interesting, you would not want to be the subject of one of them! Seek professional advice to ensure that the wording in your will is clear and unambiguous to avoid the will being revoked upon your subsequent marriage/civil partnership.

To conclude, when planning the next exciting stage of your life, don’t forget about your will and if the Prince has been so advised, when he’s standing at the altar at Westminster Abbey, it will not be wills that Wills is contemplating….

Gordon Dadds