Law Commission could recommend changes to marriage revoking a Will

The upcoming Law Commission Report on Wills is due to be published on Friday 16th May and it is thought it could recommend changes to rules where a Will is revoked in the event of marriage or civil partnership. 

The report, which has sought views on a range of potential and climactic reforms to private client, was extensively discussed on a recent Today’s Wills and Probate podcast in which Stephen Lawson, Partner at IDR Law and Elizabeth Gibbison, a solicitor at Irwin Mitchell and Chair of Law Society Private Client Solicitors Section Advisory Committee, discuss the likely contents of the report.

The Wills Act has remained largely unchanged for over 150 years. The Law Commission first tackled its reform in 2017, paused to address marriage law, and revisited it with a supplementary consultation in 2023. The result will likely be a comprehensive overhaul of how wills are made and interpreted in England and Wales.

The Law Commission themselves reference the 2017 consultation paper on its website in which it considered the need for protection of vulnerable testators in relation to the rule that a marriage or civil partnership revokes a will. It adds that concerns about predatory marriages have since grown and ‘might cast doubts on whether a marriage or civil partnership should continue to revoke a will.’ The subject will be revisited in the report.

In 2023 the Law Society sought the views of members and identified a need for further action to prevent the exploitation of vulnerable people through the marriage and wills process but acknowledged divided opinion on the subject.

“It is difficult for us to take a clear view on whether section 18 of the Wills Act 1837 should be revoked. Overall, 42% of solicitors agreed the law should be changed to stop marriage from automatically revoking a will.”

It is also though the report will consider the impact of death on cohabiting couples where there is no Will, with possible recommendations around potential rights for cohabiting couples on intestacy.

Certainly cohabitation appears to remain on the government’s agenda with a commitment to their manifesto pledge of “(strengthening) the rights and protections available to women in cohabiting couples”. In a Ministry of Justice written question put forward by MP for Hampstead and Highgate Tulip Siddiq, Alex Davies-Jones The Parliamentary Under-Secretary of State for Justice again confirmed a consultation would be forthcoming

Asked

“what steps her Department is taking to help improve the inheritance rights of unmarried couples in cases were the couple where cohabiters for an extended period”

Davies-Jones responded

“The current law allows people to make a will to set out their wishes on who should inherit their assets after their death, including cohabitees.”

“At present, unmarried cohabiting partners have no automatic inheritance rights under the current intestacy rules (which apply if an individual dies without a valid will). However, cohabitees may apply for family provision claims from the estate of the deceased if they cohabited with the deceased for a continuous period of at least two years, ending immediately before the death of the deceased.”

“The Government shares concerns about these limited existing protections for cohabiting couples. It is particularly concerning that the weakness of these protections disproportionately affects the vulnerable, including survivors of domestic and economic abuse, and women, who are often the more financially vulnerable party in a relationship.”

“For these reasons, the Government made a 2024 manifesto commitment to “strengthen the rights and protections available to women in cohabiting couples”. The Government is working to deliver this manifesto commitment and plans to issue a formal consultation as a next step later this year to build public consensus on what cohabitation reform should look like.”

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