Revocation of a Will
| Author | Nasreen Pearce |
| Pages | 99-113 |
Chapter 8
Revocation of a Will
8.1 INTRODUCTION
Grounds for challenging the will of a testator/testatrix are discussed in the previous chapters, based on whether the statutory formalities of making and executing a valid will were complied with when the will was made, interpretation of the testator’s/testatrix’s intention and the circumstances which may have affected and/or influenced the state of his/her mind. This chapter considers alleged circumstances which relate to the actions taken by the testator/testatrix himself/ herself which may have the effect of revoking any will he/she has executed because a will is revocable at any time during his/her lifetime (see para 11.4).
The Law Commission in Making a Will, Consultation Paper 231 (Law Commission, 2017) sets out its argument for reform of the current law in paragraphs 11.47–11.58. The Commission also proposes that in relation to a marriage entered into where the testator lacks capacity to make a will and is unlikely to recover that capacity, any will made prior to that marriage should not be revoked (see paragraph 11.62 of the Consultation Paper).
The circumstances in which a will may be revoked are set out in sections 18–22 of the Wills Act 1837. These include:
(a) By marriage or the formation of a civil partnership of the testator/testatrix after the will was executed.
(b) By the annulment or dissolution of the testator’s/testatrix’s marriage or civil partnership.
(c) By revocation and execution of a subsequent will.
(d) By destruction of a validly executed will. This includes a situation where, although a will is known or alleged to have been executed, it is not found, and cases where the will is found but it is defaced with indications that it was intended to be destroyed.
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A will may also be revoked if it provides for a conditional revocation of a will on the happening of an event and the condition is satisfied.
8.2 REVOCATION BY MARRIAGE
With certain exceptions, section 18 of the Wills Act 1837 as substituted by the Administration of Justice Act 1982 provides that a will be revoked by the marriage of the testator/testatrix. This section applies to all wills executed after 1 January 1983. Wills made before 1 January 1983 continue to be governed by section 18 in its original form and section 177 of the Law of Property Act 1925. Section 18 applies to voidable marriages even if that marriage is subsequently annulled. A void marriage, however, does not revoke a will made by either party before the marriage because in law the marriage is treated as never having taken place.
Section 18(3) and (4) of the Wills Act 1837 sets out two circumstances when a will is not revoked by the subsequent marriage of the testator/testatrix. These circumstances are as follows:
(a) Where it appears from a will that at the time it was made the testator/ testatrix was expecting to be married to a particular person and that he/she intended that the will should not be revoked by the marriage, the will shall not be revoked by his/her marriage to that person (section 18(3)).
(b) Where it appears from a will that at the time it was made the testator/ testatrix was expecting to be married to a particular person and that he/she intended that a disposition in the will should not be revoked by his/her marriage to that person:
(i) that disposition shall take effect notwithstanding the marriage; and
(ii) any other disposition in the will shall take effect also, unless it appears from the will that the testator/testatrix intended the disposition to be revoked by the marriage (section 18(4)).
In order for these provisions to apply, two conditions must be satisfied. First, it must be evident from the content of the will that the testator/testatrix contemplated marriage to a ‘particular person’. In the event that the testator/ testatrix marries a person other than the person referred to in the will, the will would be revoked. Secondly, that the testator/testatrix ‘intended’ that the disposition in the will should not be revoked by the subsequent marriage. The subsequent marriage, however, will not defeat a disposition in a will in the exercise of a power of appointment, unless the property would, in default of the exercise of the power, pass to the testator’s/testatrix’s personal representatives (section 18(2)).
8.3 REVOCATION BY MARRIAGE BETWEEN SAME SEX COUPLES
Pursuant to section 11 of, and Schedules 3 and 4 to, the Marriage (Same Sex Couples) Act 2013 (which received Royal Assent on 18 July 2013), the above provisions will apply to a testator/testatrix who enters into a same sex marriage. Section 11 provides:
(1) In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.
(2) The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1).
(3) Schedule 3 (interpretation of legislation) has effect.
(4) Schedule 4 (effect of extension of marriage: further provision) has effect.
(5) For provision about limitations on the effects of subsections (1) and (2) and Schedule 3, see Part 7 of Schedule 4.
(6) Subsections (1) and (2) and Schedule 3 do not have any effect in relation to—
(a) Measures and Canons of the Church of England (whenever passed or made),
(b) subordinate legislation (whenever made) made under a Measure or Canon of the Church of England, or
(c) other ecclesiastical law (whether or not contained in England and Wales legislation, and, if contained in England and Wales legislation, whenever passed or made).
(7) In Schedules 3 and 4—
‘existing England and Wales legislation’ means—
(a) in the case of England and Wales legislation that is primary legislation, legislation passed before the end of the Session in which this Act is passed (excluding this Act), or
(b) in the case of England and Wales legislation that is subordinate legislation, legislation made on or before the day on which this Act is passed (excluding legislation made under this Act);
‘new England and Wales legislation’ means—
(a) in the case of England and Wales legislation that is primary legislation, legislation passed after the end of the Session in which this Act is passed, or
(b) in the case of England and Wales legislation that is subordinate legislation, legislation made after the day on which this Act is passed.
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Paragraph 1 of Part 1 of Schedule 3 to the Marriage (Same Sex Couples) Act 2013 provides:
(1) In existing England and Wales legislation—
(a) a reference to marriage is to be read as including a reference to marriage of a same sex couple;
…
However, it does not apply to a will made before the Marriage (Same Sex Couples) Act 2013 came into force, as paragraph 1 of Part 1 of Schedule 4 provides:
(1) Section 11 does not alter the effect of any private legal instrument made before that section comes into force.
(2) In this paragraph “private legal instrument” includes—
(a) a will, …
8.4 REVOCATION BY FORMATION OF CIVIL PARTNERSHIP
Pursuant to the amendments made to the Wills Act 1837 by Schedule 4 to the Civil Partnership Act 2004, similar provisions as those which apply to a marriage (see para 8.2) have been extended to a testator/testatrix who enters into a civil partnership after he/she has executed his/her will (section 18B of the Wills Act 1837).
Section 18B(3) of the Wills Act 1837 provides that if it appears from a will:
(a) that at the time it was made the testator/testatrix was expecting to form a civil partnership with a particular person, and
(b) that he/she intended that the will should not be revoked by the formation of the civil partnership,
the will is not revoked by its formation.
Section 18B(4)–(6) of the Wills Act 1837 provides that if it appears from a will:
(a) that at the time it was made the testator/testatrix was expecting to form a civil partnership with a particular person, and
(b) that...
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