X and Y (cohabiting couple) prepared their Wills and signed them in December 1977. They married in March 1978. X left her entire estate to Y under the Will.
X has just died a few months ago. Unfortunately, there was no “contemplation of marriage clause”. My understanding is therefore that the Will is revoked. Since when have “contemplation of marriage” clauses been used and is there any other way to make the inference. It seems obvious to me that the couple were contemplating marriage given the proximity of the Will to the marriage, and the wishes in the same.
I appreciate I am perhaps clutching at straws, but any other suggestion. The firm that prepared the Will are no longer around and there is no Will file.
The concept of wills not being revoked when made in contemplation of marriage was set out in s.177 Law of Property Act 1925.
It would appear that the circumstances around the making of the will could assist in identifying whether the will was revoked by marriage and reference to Re Coleman [1975] CH. 1 might be instructive.
Failing the above, was the deceased domiciled within England & Wales at the time of the marriage?
Apparently the rule only applies if the testator is domiciled within E&W “at the moment of the marriage” – Re Martin [1900] P.211. Examples quoted in Theobald include the will not being revoked if the testator’s domicile is Scottish or Dutch.
If this (or Re Coleman) is perhaps a straw that might be worth clutching, you would probably want verification of your view by Chancery counsel, mindful of the sparsity of support for the proposition/the level of evidence required to .support the proposition, respectively.
Having said that, if the deceased died intestate does this greatly affect the entitlement of Y?
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
The contemplation of marriage clause was introduced by LPA 1925 s 177 but ceased to apply to wills made on or after 1 January 1983 (your scenario therefore falls under s 177). WA 1837 s18 (as amended) applies to wills made on or after 1 January 1983.
Not only was such a clause necessary to avoid revocation, but it had to be made in contemplation to a particular person. In the absence of any reference in the will to marriage to a named person revocation seems inevitable in particular if there is no extrinsic evidence of help (but, in any event, I’m not sure such evidence would be allowed; AJA 1982 s21).