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Hunters Law
12th October 2023

Should marriage revoke an existing Will?

Should marriage revoke an existing Will?

There is plenty in the press at the moment about the Law Commission's consultation on Wills, and as part of that consultation views are being sought on whether a marriage or a civil partnership should continue to revoke a Will, given ever-increasing concerns about predatory marriage and vulnerable people. The question is, will this do more harm than good for vulnerable people?

Predatory marriage involves an individual intentionally targeting and marrying a vulnerable (often older) person in order to gain access to their assets/estate, often with the 'predator' grooming and coercing the vulnerable individual in order to exert control over them so as to persuade them to marry for financial, material or other gain. Many people will be unaware that under English law the mental capacity required to make a valid Will is higher than that required to enter into a valid marriage, such that it is possible that a person suffering from dementia may enter into marriage. 

As the law stands, marriage automatically revokes any Will that the parties to the marriage already have in place (unless that Will includes wording to say that it was made ‘in contemplation of marriage’ to the individual they are marrying). Whilst this could thwart the intentions of a 'predator', it will often be the case that they will have arranged for a new Will to be signed in their favour, although to be successful as the law stands, the Will must either be signed post-marriage or, if signed before, it must state that it is made 'in contemplation of marriage' to the person they are marrying.  

On the other hand, if the law which automatically revokes a Will on marriage is abolished, it will not matter whether or not the new Will in favour of the predator is signed before or after marriage.

There is a view that in conjunction with the possible introduction of electronic Wills (which is also part of the Law Commission's consultation), abolishing the rule about revocation may simply make the problem of a predatory marriage an even greater one.

Either way, it is entirely feasible, and will often be the case, that a sophisticated predator will have a sufficient understanding of the law in order to circumnavigate any legal safeguards.

It is clear that we need to strike a balance between embracing technology and safeguarding against abuse, together with better public education to help individuals recognise signs of vulnerability to predatory marriage.