Reform of the Wills Act 1837



The widely known concept of predatory marriage has hit the headlines over the last few years, notably its debate as a private members bill in Parliament in 2018, the recent Channel 5 documentary series on probate disputes (2023) and awareness raised by Daphne Franks and Fabian Hamilton MP with the support of the writers and Rachel Clawson from Nottingham University (amongst others).

As a short recap, the phrase itself was only know to Canada until around 2016 when Daphne Franks1 began her campaign to change the law. It has now been adopted more widely by campaigners, private client professionals and is frequently cited by the media. The concept itself is succinctly defined as a type of forced marriage or civil partnership2 whereby individuals (usually elderly whose mental capacity is in doubt or who are vulnerable) are married (often in secret) with devastating consequences for their families and their Estate. The motive is control and financial gain by the predator.

As to the numbers of potential victims, there is no civil offence and therefore no formal data held. However, Radio Four’s “File on Four” programme commissioned a well-researched show on predatory marriage and during their research contacted 176 solicitors who between them reported 98 enquiries about Predatory Marriage in 2020 – so almost two a week. It is truly a hidden problem, and we see only the tip of the Iceberg. The abuse will continue to increase given the high value of estates (driven by increases in house prices) and the aging population. It is unlikely anyone can deny that the abuse needs to be prevented.


It is a criminal office to orchestrate a predatory marriage. However, bizarrely, it has no civil redress. This is because of the unfortunate interplay between probate and family law.

Thanks to the Matrimonial Causes Act 1973 (1973 Act), section 12(c) provides that a marriage will not be deemed void, but merely voidable should a party prove incapacity to marry. The difference is significant and cannot be understated – a party to a voidable marriage will need to apply to the court to have the arrangement annulled during life. The law is not the same as a probate claim – no marriage


2 Throughout this article, a reference to marriage includes civil partnership, and a reference to spouse includes civil partner.

3 For more detailed review, see source/article_files/nlj_2020_issue7880_mar_specialist-wills-probate-bishop.pdf?sfvrsn=e575b508_1 [James McKean, Hollie Richardson and Andrew Bishop]

on the grounds of capacity can be challenged after death (Re Roberts). The cruelty between the interplay of family law and probate law is such that:

  1. Unless the Will is made in contemplation of marriage, the questionable or even annulled marriage will still revoke any previous wills made by that individual (Wills Act 1837 (1837 Act), section 18(1)). This is because probate law deems a Will revoked automatically upon marriage except in very limited circumstances, and the voiding of a voidable marriage under the 1973 Act only applies prospectively. The revocation of the will has already occurred, and cannot be
  2. The effect of the 1837 and the 1973 Acts are such that, even if a marriage is later declared a nullity, its effect will still have been to revoke any previous Wills that person may have made in life while deemed to have The interplay also means that an individual can orchestrate a marriage to a vulnerable person, take advantage of the law, and benefit on intestacy from their victim’s estate with no or limited claims from the family (even if they have conclusive evidence of incapacity).

In order to mitigate this effect, that same individual would have to reinstate those earlier Wills after marriage. If capacity to make a new will has been lost, this can only be achieved by ordering an expensive statutory will. If the victim has died, this option is no longer open, and they will die intestate. Under the intestacy rules, the spouse will be entitled to the majority of the estate (they will be entitled to the personal chattels, plus the first £322,000, then half of the remaining estate).

The only post-death redress is justice in the criminal courts under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 (of which there has been no convictions reported (and unsurprisingly so given no records of capacity are kept at marriage)). The civil system provides no relief for the family against the spouse aside from a potential speculative claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) which is only open to specific family members and dependants with a need for maintenance. The legal test under this Act is not related to whether the court should reconstruct the Will.


The only answer to this problem is law reform, either of the law of marriage, or the law of wills (or both). This article focuses on the latter, arguing that the position that marriage revokes a will should be changed. The following points are considered important to justify this conclusion:

  1. It provides a practical fix – the aim of predatory marriage is to control financial affairs simply and without legal involvement. The cruelness is in its simplicity. If s.18 was revoked so that marriage no longer revoked a will, a predator would have to (a) marry the victim, and (b) encourage the victim to make a new Will in their favour. Should this happen, Wills can be challenged post-death and families have a right of action. In short, the risk of probate claims means that a predator will likely reconsider their plan.
  2. It is true that revoking.18 alone won’t create a full fix. However, the perfect should not be the enemy of the The s.18 revocation will remove incentive and not put the onus on families to engage in litigation to challenge a marriage after death. A complete fix also requires reform of marriage law, so that there is better protection for the vulnerable at the point of marriage. Greater safeguarding and better assessments of capacity to marry by marriage registries would provide a further disincentive; this is something that Daphne Franks has also been campaigning for. However, revocation of s. 18 would be a significant step forwards.
  3. The reform will not open the floodgates by claims from legitimate spouses over their lack of intestate A current intestate spouse will still die intestate even after marriage and after the reform advocated. This reform only affects those who are testate before marriage, which implies that they know the importance of making a valid will. If, following their marriage, they

wish to revise their will to make provision for their new spouse, then these people ought to be trusted to do that. Furthermore, they could be informed at the point of marriage as to the need to update their affairs should that be required. The reform reinforces testamentary freedom – the cornerstone of our probate law. Should a will not be updated, a spouse can seek provision from the estate under the 1975 Act. Under the 1975 Act, a spouse has a much stronger position than any other dependant, with their claim being determined using a guideline that considers what their entitlement would be on divorce.

  1. The reform is also considered to have the dual benefit of modernising the law. The writers’ experience is that the public are not aware of marriage revoking When asked, the writers’ experience is one of surprise that law from 1837 revokes their testamentary arrangements without consent, and most are unsupportive of this. We have a population that has blended family arrangements and marriages taking place later in life. The bluntness of the intestacy laws are not designed to accommodate blended families, so the focus should be on upholding Wills with the safety net of the 1975 Act, rather than a complete testamentary reset on marriage. Proper estate planning and related advice should be advocated, instead of using revocation by

s.18 to manage affairs after marriage.

  1. The test for capacity to marry and capacity to make, or revoke, a Will are also different. The recent case of Lattimer v Karamanoli confirms this – the capacity to marry is lower than capacity to make or revoke a Will. This is because the act of marriage is seen as a simpler act to comprehend than the act of making a will disposing of your property on If s.18 remains, there is inconsistency in the law, in that someone who is deemed incapable of revoking their will during life by any other means (unless there is Court of Protection involvement), could walk into the marriage registry with no solicitor support or advice and achieve the same result.
  2. As to whether revoking s.18 is a foray into the unknown, our jurisdiction is not the guinea pig for such Reference is made to the reform which occurred in Alberta, Canada4 – Alberta ended automatic revocation of Will in 2012 following cases of predatory marriage and this was followed by British Columbia in 2014. There is no desire to originate back to the pre-2012 position and it is suggested that our justification should follow suit.
  3. Finally, the common pushback as to s.18 reform is “it has always been this way” or “it’s a long standing feature of law to protect a spouse immediately on marriage”. It is true that the Wills Act is from 1837, and many of its provisions replicate earlier law. However, it is not true that this has always been a feature of law or derived from some historic common law principle of importance. Instead, the law before 1837 was radically different and, ironically, the principles that governed the earlier law ring truer today that the reform decided upon in 1837 that lead to the Wills This is a part of history which requires proper explanation and for those that have an interest, the points are set out at the end of this article and are well worth a read.

As a side note, the quirks of the current legal position are also highlighted in Westminster v IC. In this case IC, who had been married in Bangladesh, was a demonstrably vulnerable individual lacking capacity. There was a dispute over whether the marriage could be recognised. The mischief of Re Roberts was avoided in this case by the Court refusing to recognise the Bangladeshi marriage under conflicts of law rules, such recognition being against public policy. As a statement of principle, this is difficult to reject. However, if the marriage had taken place in England or Wales, the outcome would have been different. Assuming that an individual could be found to officiate over the ceremony, IC’s marriage would have remained valid until the point of its annulment and, if IC died before it could be annulled, it would have endured indefinitely despite it being what the court saw as against public policy.

This article has focused on the injustice to a disinherited beneficiary, but the harm to the victim personally should not be overlooked and the IC case serves to demonstrate that under the current law,


domestic marriages have less protection against abuse, as compared to the court’s powers to consider marriages taking place abroad.

The Law Commission is actively consulting on the issue and has expressed a view that it wishes to reach a binary position on the issue: repealing s.18 (1) in its totality or simply not. Readers which have an interest in this topic are invited to respond to the Law Commission – Ultimately, it is considered that reform is needed and it is hoped that further victims can be prevented and the law can be reformed before further harm is caused.

Automatic Revocation of a Will on Marriage – A Rule that is past its Use-By Date?

Prior to the 1837 legislation, a woman’s will was revoked on marriage, but that was because, under the property law at the time, she became a ‘feme covert’ and lost control over her property. There was no automatic revocation on a man’s marriage. However, the ecclesiastical courts could rule that there was an implied revocation, on the basis of a significant alteration in the testator’s circumstances. Interestingly, marriage alone was not a sufficient alteration in circumstances to cause revocation; only when a man married and had a child would a presumption of intended revocation arise. The principle was stated to have derived from the civil law, the focus of which was providing for the deceased’s child(ren).

The pre-curser to the Wills Act 1837 was the 1833 Fourth Report of the Real Property Commission (‘Fourth Report’), the aim of which was to make the law of wills simple and uniform. The implied revocation rule was closely scrutinised, and the conclusion of the Fourth Report was that the inconveniences outweighed the advantages. The rule should therefore be abolished; marriage should not revoke a man’s will. It would, however, still revoke a woman’s will, due to the change in property rights on marriage.

This provision was in the first draft Bill that was laid before parliament. However, in March 1835 the Bill was scrutinised in Select Committee and, by the time it was next laid before parliament, the provisions had changed so that marriage now revoked the will of a man or a woman.

Although it is impossible to tell for certain what occurred in the Select Committee, the Hansard records of debates in the House of Commons and House of Lords suggest that the main driver behind the alteration was the desire to achieve simplicity and clarity in the law on wills, with all people and property subject to the same uniform laws. Marriage had to revoke the will of a woman due to the significant change in her property rights, so the only way that the law could be consistent and clear seems to have been to provide that marriage of a man or a woman revokes their will.

At the time of the enactment of the Wills Act 1837, the intestacy rules and rights of dower provided both children and widows with some financial protection in the absence of a will, although the inheritance rights of daughters, and younger sons, was limited to the deceased’s personalty. The oldest male heir was entitled to all of the deceased’s real estate.

The implementation of the Wills Act 1837 focused attention on the act of marriage, as opposed to the conjunction of marriage and birth of a child; it was the act of marriage alone that should trigger the re- thinking of one’s testamentary provisions. The civil law origins of the rule, that considered provision for children to be the priority, were lost and replaced by a narrative of expectation in favour of the spouse. Since that time, the intestacy rules have increasingly favoured the spouse. We have moved to a position where the surviving spouse / civil partner will receive the majority of the estate. It is this current position, coupled with the automatic revocation rule, that can provide the financial incentive to marry or enter into a civil partnership.

s 18 Wills Act 1837 was not what had been proposed by the Fourth Report, and instead appears to be the result of the interaction of archaic nineteenth century women’s property rights with the desire for simplicity and consistency. Given the laws of property ownership at the time, automatic revocation on

marriage was the only way to achieve these aims. However, the warnings sounded by the Fourth Report in 1833 hold true: automatic revocation of a will on marriage can lead to an individual’s property being distributed in a way that directly contradicts their expressed wishes. Back in 1833, the Fourth Report recommended that marriage of a man should not revoke their will. Is it now time to implement this recommendation for all?