20 October 2023 by

Does your Will have a clause to prevent it being revoked by marriage or civil partnership?

We highlighted the effect of marriage and civil partnership on a Will in our previous article here. But what happens if your Will states that you have made the Will “in contemplation of marriage”? And what if you then enter into a civil partnership?

Marriage and Civil Partnership

Many of us are aware marriage effects our Wills. In fact, it revokes the Will completely!  What is perhaps less well known is that this is the same for civil partnerships, which thousands of couples now use every year to legalise their relationship.

If, however, a Will is entered into in contemplation of marriage or a civil partnership, and the relevant clause is appropriately drafted, the Will remains valid after the marriage or civil partnership.

A clause would usually be inserted in the Will to the effect that “At the time of making this Will, I expect to be married OR form a civil partnership with [name] and intend that such marriage OR civil partnership shall not revoke this Will”.

What happens though if your Will includes only the expectation of marriage and you decide to enter into a civil partnership?  Currently, there is no specific authority on whether the Will would be revoked or not.

It could be argued that the conditions are very specific and the wording of the Will must be clear and unambiguous. Therefore, if the Will states it is made in contemplation of marriage, it will be revoked if the couple form a civil partnership and do not marry.

However, the more likely conclusion is that a Will made in contemplation of marriage will not be revoked if the couple decide to enter into a civil partnership. This is for the following reasons:

  • For the purposes of the law relating to Wills and inheritance, the overall objective of the legislation is to treat civil partnerships in the same way as marriage.
  • In accordance with the above, the provisions in the Wills Act 1837, respectively relating to marriage and civil partnerships, are identical.
  • Those sections emphasise the intention of the testator who had expressed the intention that the Will should not be revoked.

However, for certainty and to avoid any dispute, it would be our advice to execute a new Will to clarify the point.

The Law Commission

The Law Commission is, however, considering whether marriage or a civil partnership should continue to revoke a Will.  That said, concerns have already been highlighted over the risk, including in particular for vulnerable people.

The consultation is also considering whether a new Wills Act should permit electronic wills, either immediately or by allowing for them to be introduced later. Any provision for electronic wills would need to ensure that they are as secure as paper wills.

The deadline to respond to the consultation paper is the 8 December 2023.  We will provide an update on the outcomes in due course.

If you want to make a new Will, or have any concerns about the validity of your existing Will, please contact one of the experts in our Wealth and Estate Planning team.

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