Marriage Revocation Clause - Mutual Wills


#1

I have been instructed by a lady who has just lost her husband. The Wills she has provided are mutual Wills and the facts are as follows:-

  • The Mutual Wills were signed in 2014 when they were unmarried and they contain a marriage clause
  • They married 5 days before his death
  • They had only been engaged for 1.5 years

I do not believe that the condition required has been met :-

" the testator must have been expecting to be married or to form a civil partnership with a particular person at the time that the will is executed. It is not enough for the testator to simply state that he or she expects to marry in general"

Where do we go from here? Or has the condition been met because it was their intention (been together a long time, home together and business together)

Any help would be very gratefully received!

Cassie Arbour
Rudlings Wakelam


(Lynsey Bashforth) #2

I was on a wills masterclass course a year or so ago and I had always been trained that the expectation needed a date in mind for the marriage etc. However the speaker advised that they would encourage co-habitees to draft in such a clause to protect from a situation that you have detailed above i.e - they formalise the relationship if one gets ill. My understanding therefore is that you make the clause within the will that it is an expectation to marry a specific person not the world in general - if that is clear then the will is not revoked then by that marriage. So as you have stated your clients have stated they make it in expectation of marrying each other at the time of drafting the will if they were to marry they would expect that to be each other and have stated that to be the case.

Whether they were engaged at the time the will was drafted or whether they never in fact married still the will is valid - the will would be revoked if they married someone other than the person that is named in the clause?

I would be interested to hear what others thoughts are though, but I do give co-habitee clients of mine the option of drafting upon contemplation of marriage/civil partnership if they wish to.

Sometimes they are adamant that they don’t wish to include and I warn them of the revocation should they go on and marry.

Hope this helps and again I would be interested to hear others views.

Lynsey Bashforth
Bashforth Young Solicitor


(Paul Saunders) #3

With such an unusual situation, I suggest a referral to Chancery counsel would be appropriate to protect both your firm and the client(s).

Paul Saunders


(Andre Davidson) #4

Was the intended spouse mentioned in the will?

It is my understanding that to comply with the statutory requirement a will made in contemplation of marriage must be expressed to be made in contemplation of marriage with a particular person.

The will must state the person who the testator intended to marry and the fact that the will would not be revoked by said marriage to said testator.

A similar principle re civil partnerships was set in Court and Others v Despallieres [2009] EWHC 3340 (Ch). see https://www.lawgazette.co.uk/law/probate-revocation-of-will-by-subsequent-formation-of-civil-partnership/53888.article

(I also cam across an article that stated a mutual will is not revoked on re-marriage, so it may not be revoked on marriage as a true mutual will leads to a constructive trust after the first death.)

Andre Davidson
Finantium