Section 18B [1] of the Wills Act 1837 contains new provisions with regard to the revocation of an existing Will by the formation of a Civil Partnership, in the same way that marriage automatically revokes an existing Will, UNLESS, in either Civil Partnership or Marriage cases:
It appears from the Will:
- That at the time it was made the Testator (i.e. the Deceased) was expecting to form a civil partnership (or marriage) with a particular person; and
- That he intended that the Will should not be revoked by the formation of the said civil partnership (or marriage)
The deceased was a successful executive in the music industry with substantial wealth. By a 2002 Will he had left his Estate to friends, family members and 3 Australian Charities. In 2008 however, he had formed a close relationship with the defendant (a much younger man). A new Will was produced by the defendant, though the family alleged in any event that it was a forgery. The new Will was dated August 2008. It read as follows:
“I the undersigned [Testator] do by the present:
1 Revoke all former wills and testamentary dispositions heretofore made by me and declare this to be my irrevocable last will and testament
2 Direct that this, my last will and testament shall not be revoked by neither subsequent marriage, civil union partnership nor adoption
3 Declare that my country of domicile is the United Kingdom
4 Give and bequeath to [the Defendant] the entirety of my estate as a sole beneficiary”
The Testator and the Defendant had entered into a Civil Partnership in October of the same year. The new Will would therefore have been automatically revoked UNLESS it complied with S18B above.
Mr Justice Arnold held that the deceased had not complied with the section because:
- The language of the Will must show that the deceased expected to form a particular civil partnership and
- Intended that the will would not be revoked by that partnership
- By clause 2 of the Will, the deceased had only given a general statement about the effect of a civil partnership upon the Will – not an express indication that a particular partnership was contemplated
- Furthermore, no indication was given as to whom the partnership was to be formed with. The defendant was only mentioned in clause 4 of the Will as a beneficiary, not as a particular person to the partnership arrangement.
Conclusion
There are 4 specific points to be aware of:
- Marriage / Civil Partnership AUTOMATICALLY revokes an existing Will, unless the Will in question satisfies S18 of the Wills Act.
- Particularly at risk are divorced people who sensibly prepared a Will once divorce proceedings commenced (to protect the children), but who have subsequently met a new partner and intend to remarry – the union through marriage / civil partnership will revoke the former Will
- “Death Bed” marriages undertaken through love (but necessarily in haste), may not have considered the implications for any pre-existing Will. The new Spouse / Civil Partner may have been the sole beneficiary under the pre-existing Will, but could find themselves having to share the Estate with relatives of the deceased under the Intestacy Rules, if the Will is deemed revoked
- Use a qualified Probate Lawyer at GAD LLP Solicitors! The above will was clearly “home-made” and used poor and ineffective precedents. The “illusionary” saving in legal costs in NOT having a Will professionally drafted paled into insignificance when weighed against the actual costs of litigation that ensued before the Court. Very few of us repair a broken down car – we go to a garage. Fewer still cut their own hair – they go to a stylist. No-one pulls their own teeth out….yet, people insist, without any legal training, to write what is possibly the most important legal document in their entire life and which if wrong (and it will invariable be so!) will cause tremendous heartache and financial ruin for those loved ones that remain. Understanding your current circumstances and future intentions enables the Private Client Department at GAD to tailor your Will to your exact requirements ensuring that the finished document will not fail or be subject to challenge before the Court.
