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20 March 2015 | Comment | Article by Roman Kubiak TEP

Long engagements and wills


Michaela discusses the benefits of preparing a will in contemplation of marriage or civil partnership.

Earlier this month was the 8th anniversary of my engagement to my partner. We are slow to get into the wedding mood as we’re so indecisive!

However, one thing on which we have decided is the importance to draw up our wills. With me working in this line of business, we have no excuse. Cohabiting, and with our first child on the way, we both know how important this is.

My colleagues have previously discussed what you need to think about when making a will, the points to consider regarding wills and guardianship and the pitfalls for cohabiting couples not preparing wills.

We will get married at some point; I didn’t say yes just for the diamond ring. As marriage revokes a will under s.18 Wills Act 1837 (entering into a civil partnership revokes a will under s.18B Wills Act 1837), is it worth writing a will now? Or should I wait until I am married?

Under ss.18 and 18B Wills Act 1837, you can write a will in contemplation of marriage or entering into a civil partnership. A will is revoked on marriage/civil partnership unless “where it appears from a will that at the time it was made the testator was expecting to be married to a particular person and that he intended that the will should not be revoked by the marriage, the will shall not be revoked by his marriage to that person.” If we take a look into that last statement, you will see there are some conditions which need to be met:

  • the testator must expressly state in the will that it is their intention that the will should not be revoked by the subsequent marriage or entering into a civil partnership. A revocation clause in the will should meet this condition;
  • the will must name a specific person and not be in contemplation of some future, unspecified, marriage/civil partnership. The recent case of Court v Despallieres [2009] EWHC 3340 (Ch) held that the will was revoked as the testator did not name the person he was intending to enter into a civil partnership with in his will. The civil partnership then revoked his current will; and
  • the marriage/civil partnership must also take place in the foreseeable future. Re Gray’s Estate [1963] discussed this aspect. The testator mentioned “his wife” in the will. However, they married 25 years after the will was made. The judge held that this was too long and the will was revoked on their marriage.

If I had made a will a few years ago and made it in contemplation of marriage to my fiancé then it is possible that that the will would be revoked when we eventually married. We probably would not have met the “foreseeable future” condition. As such, I will be writing my will in contemplation of marriage. If I died intestate (without a will), then my fiancé would not receive anything under the intestacy provisions and may even have to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Taking all this into consideration, it would actually be in his best interests to marry me quickly! In the words of Billy Idol, “It’s a nice day for a white wedding”. Dum Dum Dumdum…..

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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