Does marriage automatically revoke a mutual will?

I am advising an unmarried couple for whom I prepared mutual wills and an accompanying agreement about 3 years ago, at which time they were totally adamant that they were never going to get married. Well, hey presto! they have just told me that they are getting married this December.

The question they have asked me is whether their existing mutual wills will be automatically revoked by their marriage.

Jane Whitfield
Barrett and Co

They should be revoked anyway as I cannot think of any circumstance when I would advise anyone to complete mutual wills in view if all the uncertainties and complexities surrounding them!

Simon Northcott

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Yes, marriage revokes a Will, even a mutual one.

No doubt when you drafted the Wills you provided that one of the triggering events (ie the events which brought the mutuality to an end) was the marriage of the parties.

All they need is a short codicil republishing the existing Wills. But the trust set up by the mutual Wills will revive on the death of the first to go, so the documents must be retained. How you prove the mutual Wills, I don’t know. I hope one of the other members will be able to comment.

Julian Cohen

Simons Roddick

section 18 of the Wills Act 1837 revokes the Wills unless there was an expectation of marriage when it was made. Clearly, on the facts, there wasn’t an expectation so revocation takes effect.

I assume the broader question is whether the overarching agreement between the couple survives. If they are aware the Wills are going to be revoked on marriage then is it reasonable to assume that they are agreeing to end the agreement?

Samir Hussain

The Will is undoubtedly revoked, as Julian says the underlying trust or contact survives. For the sake of completeness I would prepare a deed revoking the trust and lodge it with the Will. I would also remind myself never to agree to prepare another mutual Will.

Iain Cameron
Acer Legal

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I agree that both wills are revoked. I would also agree with Samir that the revocation of the wills before either party has died brings the underlying mutual wills agreement to an end, just as a unilateral breach of the agreement before the first death would: Theobald on Wills at 1-014.

Alexander Learmonth
New Square Chambers

I agree with all comments above in respect of the Wills being revoked due to the marriage but have a question, if there was a separate agreement which accompanied the Will, is it not that separate agreement which is what is important as opposed to the validity of the Will. Reference is made to the following
have no idea whether this is outdated or not but the more I understand about mutual Wills, it seems the less I know about them

Brendan Noone
Noone & Associates

HMRC accept I believe that varying the devolution of an asset that has been sold can be achieved for IHT purposes, by gifting the proceeds in a deed of variation, and linking back the proceeds to the original asset in the deed.

However I do not believe this can result in a read back in relation to the sale for CGT purposes, by substituting the new beneficiary as the person making the CGT disposal. Do members agree? I thought there may have been a case confirming this, but cannot find it.

Simon Northcott

Simon, I am responding to your post under the same heading for continuity, but perhaps the heading should be changed as the subject matter does not appear to match.

I have always thought the same as you – that the original beneficiary would still be chargeable in relation to any sale pre-DOV. However, that does not seem to be reflected in the HMRC guidance, which states (at CG31630) as follows:

  • If the assets have vested in the legatee and the legatee has disposed of the assets before the deed is executed, then the disposal is no longer treated as an occasion of charge for the legatee. Instead it is treated as an occasion of charge for the assignee.

It won’t, presumably, have any such effect if the sale is by the executors, however.

**Diana Smart
**Gordons LLP

Taking this a stage further, in my case the property formed part of residue, and it was sold by the executors at a time when residue was unascertained.

The residuary beneficiaries are considering directing that one of them, in addition to a share of residue, will receive the benefit of 30% of the property. In the deed they will gift the proceeds of 30%, to trace back to the asset, which will be redirected
as a tax free gift.

The 30% share is now effectively a specific legacy. There are adequate assets to leave no doubt that the new legacy will be satisfied. Does this mean one can argue that the sale of 30% of the property was by the new legatee for CGT purposes instead of the executors?

Kind regards

Simon Northcott