One of the most striking changes proposed in the Law Commission’s recent Final Report on Wills law is the recommendation that marriage or civil partnerships should no longer automatically revoke a Will. This rule has existed for well over a century, but as the Commissions makes clear, it is increasingly out of step with modern relationships and can cause significant justice.
This article explores how the law currently operates, what the Law Commission recommends, and why the proposed reform may offer a more sensible, protective framework for contemporary family life.
Current Law: Marriage/Civil Partnerships Revoke a Will:
Under the current law, specifically section 18(1) of the Wills Act 1873, a Will is automatically revoked by a subsequent marriage or civil partnership, unless the Will was made in contemplation of that marriage and includes appropriate wording to say so. This principle was designed in the 19th century to protect the interests of a new spouse and ensure that testators revisited their Will to reflect a major life event.
The effect of this rule is unambiguous. Suppose a person makes a Will leaving their estate to their children, then marries someone new but dies shortly after, before making a new Will. The law treats the prior Will as revoked, and no, unless a new one was made, the person dies intestate. The new spouse inherits under the intestacy rules, often to the exclusion or detriment of the children, stepchildren, or other intended beneficiaries.
This situation arises more frequently than one might assume, particularly in second marriages and blended families. The Law Commission cites empirical evidence suggesting that many people are unaware that getting married automatically invalidates a Will. Where that occurs, the outcomes is not the expression of fresh testamentary intention, but rather a legal fiction: the law presumes that the testator wanted to revoke their Will, even when there is no such evidence.
The courts have acknowledged the harshness of this rule. In Re Green [1951] Ch 148, the judged outlined that the outcome, although legally correct, produced “a result which no reasonable person could have intended”. Nonetheless, courts have little discretion, the revocation is automatic and mechanical.
The Problem: Outdated Assumptions and Unintended Consequences:
The rationale behind this rule reflects an era when marriage was more likely to make a clean slate, often a person’s first and only marriage, with a spouse entirely dependent on them. Today this assumption is often invalid. Many people:
- Marry later in life,
- Have children or even grandchildren from previous relationships,
- View their estate planning separate from the act of marrying or remarrying.
Yet under the current framework, unless they formally remake their Will in contemplation of their new marriage, and include the exact wording, they can inadvertently erase their prior testamentary wishes.
The Law Commission notes that the consequences of this rule fall most heavily on vulnerable groups, including older people who remarry later in life, or those who are less likely to seek legal advice when marrying (especially in civil partnerships formed later for tax or administrative reasons).
It also introduces unfairness where estranged or abusive spouses inherit under intestacy, simply because their marriage revoked a Will that would have excluded them.
The Proposal: Marriage and Civil Partnership Should Not Revoke a Will:
To remedy this, the Law Commission proposes that marriage, or civil partnership should no longer revoke an existing Will.
This change would align Wills law with how the law treats divorce, which already does not revoke a Will. But instead treats the ex-spouse as if they had predeceased the testator (Wills Act 1873, s18A). It also reflects the approach taken in other jurisdictions, such as parts of Australia and New Zealand, which have abandoned automatic revocation by marriage in favour of a more intention-based system.
Under the proposal:
- Wills would remain valid after marriage unless the testator deliberately revokes them,
- This court would no longer presume an intention to be revoke based solely on the act of marriage,
- Instead, testamentary intention would govern, as it should.
The Law Commission justifies this on both pragmatic and principles grounds. Pragmatically, it removes a trap for the unwary. Principally, it restores testamentary freedom as the core principle, the idea that a person’s Will should be followed unless there is clear and valid reason to ignore it.
Addressing Safeguards: Protecting Spouses and Partners:
A natural concern might be whether removing this rule could disadvantage new spouses or civil partners, especially where a Will is old or does not mention them.
Here, the Law Commission emphasises the role of the Inheritance (Provision for Family and Dependants) Act 1975, which allows a surviving spouse (or others) to apply for reasonable financial provision from the estate if the Will fails to make adequate provision. That safeguard is already in place and provides a targeted and fairer solution than automatic revocation.
In other words, if a person remarries but fails to update their Will, either deliberately or through oversight, the new spouse is not left without remedy but can apply to the court under the 1975 Act. The court can then assess the situation holistically, considering the length of the relationship, financial dependency, and other relevant circumstances.
This is far more tailored than a blanket rule of revocation, which often overrides clear testamentary wishes and creates unfair outcomes.
Legislative Reform: Implementing the Change:
The recommendation is reflected in the Law Commission’s draft Wills Bill, which accompanies the final report. The Explanatory Notes to the draft Bill for a new Wills Act state that:
“By providing that a will can only be revoked in those particular ways, the effect of clause 8 is that the previous rule that marriage or the formation of a civil partnership revokes a testator’s existing will, is abolished.”
This is clear and unequivocal. It represents a modernisation of the rigid 19th century rule and repositions the focus on Wills law squarely on the intention of the testator. The Law Commission anticipates that this reform Will reduce disputes, improve clarity, and prevent accidental intestacies that arise through thack of awareness.
Final Thoughts: A Sensible Modernisation:
The proposal to end automatic revocation of Wills by marriage is one of the clearest examples in the Law Commission’s report of a rule that has outlived it usefulness. Its removal would bring English law in line with modern life and international best practices, while maintaining essential protections through the courts where appropriate.
It recognises that marriage is no longer a reset button on financial and personal affairs, and that people should not be penalised for failing to know the intricacies of the 19th century statutes.
If enacted, this reform would uphold testamentary freedom while removing a dangerous trap, and in doing so, help more people ensure their wishes are respected, no matter when or whom they marry.
