The effect of marriage and divorce on wills: Law Commission recommends change
Obviously, when someone wants to make particular arrangements for their estate after they die they will make a will, to ensure that those arrangements are given effect.
However, many people are unaware that both getting married and getting divorced can affect the will, with the result that their estate may not go where they want it to go.
Under the law as it stands at present, when a person gets married then any will that they previously made will be revoked. This means that the will will have no effect at all and their estate will be distributed in accordance with the intestacy laws.
The rationale behind this rule is of course to protect the new spouse of the person who made the will (the ‘testator’), the thought being that getting married is such a life-changing event that the testator would no longer want their estate going to whoever they left it to in the will. Instead, they would want to provide for their new spouse in the will.
And the rule therefore protects the spouse should the testator forget or fail to amend the will when they got marriage.
There is an exception to the rule, in that a will that was clearly made in contemplation of a marriage and that states that it should not be revoked when the marriage takes place, will not be revoked.
Divorce, on the other hand, does not revoke a will. But that is not to say that it has no effect. On the contrary, it will mean that the testator’s former spouse will be treated as having died before the testator. This means that any gifts in the will to the spouse will not take effect, and nor will any appointment of the spouse as the executor of the will.
Obviously, it is important that anyone getting married or divorced is aware of these rules.
However, the rule stating that marriage revokes a will may be about to change.
The Law Commission, which keeps the law of England and Wales under review, has recently published a report on possible modernisation of the law relating to wills.
The report makes various recommendations for reform of the law, including that the rule that marriage revokes a will should be abolished.
The primary reason for the recommendation is that the Commission is concerned about what it calls ‘predatory marriages’, where a person marries someone, often someone who is elderly or who lacks the mental capacity to marry, as a form of financial abuse, the purpose of the marriage being for them to inherit the testator’s estate when they die.
On the other hand, opponents of the change warn that it could mean more spouses having to make expensive court claims for financial provision from the estate.
We will have to wait and see whether the recommendation is put into effect. The Government is currently reviewing and considering the recommendations in the report, and will make an announcement once it has done so.
The full Law Commission report can be found here.
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