The Law Commission’s Report on modernising wills

For centuries, under English law, entering into marriage (and relatively recently, civil partnership) has revoked a previously made will, unless the will was clearly made in contemplation of that very marriage or partnership. While this doctrine was first codified in the Wills Act 1837, its roots dig deeper, entwined with concept of “feme couvert” and the historical suspension of a woman’s rights on marriage.

But change is afoot.  As detailed in the Law Commission’s recent report, “Modernising Wills Law,” a bold recommendation is making waves: abolishing the automatic rule that marriage or civil partnership revokes an existing will. This reform is more than a technical tidying of the law—it could profoundly alter the inheritance landscape and directly addresses growing public concern over “predatory marriages”—a phenomenon that has drawn both legal and media scrutiny.

The Rule and the Rationale for Reform

The current law is blunt: marry, and unless your will expressly anticipates this, your testamentary wishes are swept aside, and the intestacy rules—those rigid family-based defaults—spring into effect. Historically, this rule was justified on the basis that marriage marked a radical change in personal circumstances, often introducing new financial and moral obligations which the law presumed should be reflected in a new will.

Yet as the Law Commission notes, today’s families are more diverse and complex than ever. People remarry, have children from different relationships, or choose not to marry at all. Life expectancy and property values have grown. Most critically, the rule can have the unintended effect of undermining an individual’s autonomy—of frustrating the very testamentary freedom that is a founding principle of English law.

Predatory Marriages: The Problem in Focus

“Predatory marriage” describes the situation where an individual—often elderly or otherwise vulnerable—is manipulated or deceived into marriage, typically by someone seeking to benefit financially. As the Law Commission’s report details, worries about predatory marriages have intensified, particularly as marriage or civil partnership automatically revokes pre-existing wills. The predator, upon marrying the victim, may secure for themselves a windfall under the intestacy rules or by ensuring a new will is never made.  Capacity to make a will requires a higher cognitive ability than capacity to marry, and a solicitor must address the question of capacity (and undue influence) when taking instructions for a new will, whereas a priest, vicar, registrar or other officiant is less likely to address the parties’ mental capacity to enter into the union in question, at the relevant time.

With the abolition of the rule, this automatic revocation would no longer occur. Instead, the deceased’s existing testamentary dispositions would remain operative unless a new will is voluntarily and validly executed.

Inheritance Claims Under the 1975 Act: A Shift in the Landscape

The Inheritance (Provision for Family and Dependents) Act 1975 (“the 1975 Act”) provides a safety net of sorts: certain categories of people, including spouses, former spouses, children, cohabitants, and dependants, may bring a claim if they believe the will (or the intestacy rules) fails to make “reasonable financial provision” for them.

What happens to potential claims under the 1975 Act if marriage or civil partnership no longer revokes a will?

Spouses and Civil Partners’ Claims: Under the current law, a new spouse or civil partner whose union revoked a former will would stand to inherit under the intestacy rules (if no new will is made), but if dissatisfied with the statutory distribution or disinherited by a new will, they could claim under the 1975 Act. If the automatic revocation rule is abolished, a spouse may find themselves excluded by a pre-marriage will—perhaps one made in favour of children or a previous partner. In such cases, the new spouse would have standing to bring a 1975 Act claim, seeking reasonable financial provision from the estate.

The removal of automatic revocation means greater reliance on the 1975 Act to protect new spouses and civil partners. As the Law Commission notes, this places an increased onus on the courts to weigh the fairness and needs of all parties, including those who may have married the deceased late in life under questionable circumstances. The Act’s provisions—requiring judges to consider the applicant’s needs, the size of the estate, the conduct of the parties, and the obligations of the deceased—are in many ways more nuanced than the blunt instrument of automatic revocation.

The reform also offers greater protection for adult children and other beneficiaries named in prior wills, whose interests might otherwise be wiped away by a parent’s later marriage. The 1975 Act remains available to new spouses or dependents, but the testator’s adult children or other non related beneficiaries are unlikely to be successful in a 1975 Act claim.

Balancing Freedom and Protection: The Role of the Courts

The Law Commission’s report is clear: abolishing the automatic revocation rule does not leave new spouses or vulnerable parties unprotected. Instead, it shifts the focus from a mechanistic rule to a system of individualised judicial assessment.

The 1975 Act already empowers the courts to make more nuanced decisions that balance testamentary freedom with fairness and dependency.  But it can be a very costly and emotionally draining process. It is not therefore something that families would want to rely on, if at all possible.

Looking Forward: Practical Implications and Advice

While anecdotally, the rule that marriage revokes a will is not widely known, for practitioners, testators, and families, the message is clear: the abolition of the marriage revocation rule provides greater certainty and respect for existing testamentary intentions, but it also places a premium on regular review and updating of wills. Anyone entering marriage or civil partnership should consider whether their current will (or position on intestacy) reflects their wishes in their new circumstances.

Conclusion

Abolishing the rule that marriage revokes a will is a significant step towards a more modern, flexible, and just succession law—one that recognises the diversity of modern families and the primacy of personal intention. It also answers the call to address the risks posed by predatory marriage, while ensuring that the “safety net” of the 1975 Act remains available, if only as a last resort.