Introduction
The principle that a marriage automatically revokes a pre-existing will is a long-standing feature of the law of succession in England and Wales, enshrined in section 18 of the Wills Act 1837. Rooted in the nineteenth-century assumption that a testator would naturally wish to provide for their new spouse, the rule was designed to prevent inadvertent disinheritance. However, in the context of twenty-first-century societal structures and emerging forms of elder abuse, this paternalistic provision appears increasingly anachronistic and, paradoxically, a tool for injustice. This essay will argue that section 18 of the Wills Act 1837 should be repealed. The rule’s foundational logic is obsolete, failing to reflect modern familial arrangements and testamentary intentions. More critically, it has been weaponised in cases of ‘predatory marriage’, where vulnerable individuals are targeted for their assets. The automatic revocation of a carefully considered will upon such a marriage subverts, rather than protects, the testator's true wishes and facilitates financial abuse. While existing safeguards offer some protection, they are inadequate to counter the blunt force of section 18. This essay contends that repealing the rule and relying instead on the discretionary jurisdiction of the Inheritance (Provision for Family and Dependants) Act 1975 provides a more just, flexible, and appropriate framework for balancing the claims of a new spouse with the fundamental principle of testamentary freedom.
The Rationale and Operation of Section 18 of the Wills Act 1837
The current law is deceptively simple. Section 18(1) of the Wills Act 1837, as substituted by the Administration of Justice Act 1982, states that "a will is revoked by the testator’s marriage". This rule is automatic and absolute, operating irrespective of the testator's actual intentions or knowledge (unless an exception applies). The original rationale stemmed from the legal and social conditions of the nineteenth century. Upon marriage, a wife’s legal personality was subsumed into her husband's under the doctrine of coverture, and marriage was seen as such a fundamental change in a person's life and obligations that the law presumed they would want to redraft their will to provide for their new family (Sawyer, 2018). The automatic revocation principle forced a reassessment of testamentary dispositions, with the intestacy rules serving as a default provision for the new spouse if no new will was made.
The primary statutory exception to this blunt rule is contained in section 18(3), which provides that a will made "in expectation of a marriage to a particular person" is not revoked by the solemnisation of that marriage. For this exception to apply, the will must express that it is made in contemplation of a specific, future marriage; a general contemplation of marriage is insufficient (Law Commission, 2017, para 10.15). The case law demonstrates the narrowness of this exception. In Estate of Langston (1953), a will made ‘in contemplation of marriage’ was held to be effective, but later cases have affirmed that the will must be linked to a marriage with a specific individual. For instance, in Re Coleman (Deceased) (1975), a bequest to "my fiancée" was sufficient to show the will was made in contemplation of marriage to a particular person, preventing revocation. However, if the testator's intention is not explicitly clear from the will itself, extrinsic evidence is generally inadmissible, creating a high bar for testators to clear. This narrowness means that many individuals who marry without specific legal advice find their previous wills are inadvertently revoked.
The effect of revocation is to render the will legally void. If the testator dies without making a new will, their estate is distributed according to the intestacy rules set out in the Administration of Estates Act 1925. Under the current rules, where the deceased is survived by a spouse and children, the spouse receives all personal chattels, a statutory legacy of £322,000, and half of the remaining estate. If there are no children, the spouse inherits the entire estate. While ostensibly protective of the new spouse, this outcome can be catastrophic for the intended beneficiaries of the revoked will, such as children from a previous relationship or long-term dependents.
An Anachronism in a Modern Society? The Rule's Detachment from Contemporary Norms
The socio-legal landscape that gave rise to section 18 has transformed beyond recognition. The rule’s core assumption—that a testator’s primary intention following marriage is to provide for their new spouse above all others—is no longer universally valid. Modern family structures are complex and diverse, frequently involving second or third marriages, cohabiting relationships, and children from multiple partners. In such circumstances, a testator may have well-established financial and moral obligations to individuals other than their new spouse. They may, for example, have made a will specifically to ensure their assets pass to their children from a first marriage, with the understanding that their new spouse is financially independent or has been provided for separately (Du Vivier, 2018).
The automatic revocation rule overrides these carefully laid plans, imposing a 'one-size-fits-all' solution that can create profound injustice. It subverts the principle of testamentary freedom, which is a cornerstone of English succession law, by substituting a legislative assumption for the testator's expressed wishes. As the Law Commission pointedly noted in its 2017 consultation paper, Making a Will, "the rule is capable of operating as a trap for the unwary" (Law Commission, 2017, para 10.2). An individual who marries later in life may be entirely unaware that this act has nullified a will they made years earlier. The result is that their estate is distributed according to the rigid intestacy rules, which may be diametrically opposed to their lifelong intentions.
Furthermore, the legal status of marriage itself has evolved. While marriage remains a significant institution, it no longer holds the unique legal and social position it once did. The rise of long-term cohabitation, recognised for some purposes by the law, means many couples establish settled family lives without marrying. Yet, the law creates a stark dichotomy: cohabitation, no matter how long, has no effect on a will, while marriage, no matter how short, has a dramatic and conclusive effect. This legal cliff-edge is difficult to justify and appears increasingly arbitrary.
Predatory Marriage: The Unintended Weaponisation of Section 18
The most compelling argument against the continuation of section 18 lies in its role as an inadvertent facilitator of elder financial abuse through predatory marriage. A predatory marriage occurs when a person, often a much younger individual, cultivates a relationship with a vulnerable, typically elderly and wealthy person with the primary intention of acquiring their assets upon death (D'Arcy, 2020). The victim often suffers from cognitive decline, dementia, loneliness, or isolation, making them susceptible to manipulation and undue influence.
The legal framework creates a perfect storm for such predators. The critical issue is the disparity between the legal tests for capacity to marry and capacity to make a will. The test for testamentary capacity, established in Banks v Goodfellow (1870), is relatively stringent. The testator must understand the nature of making a will and its effects, the extent of the property they are disposing of, and be able to comprehend and appreciate the claims to which they ought to give effect. By contrast, the test for capacity to marry is significantly lower. In Sheffield City Council v E and S (2004), Munby J held that capacity to marry requires a person to understand the nature and duties of marriage, but not necessarily its financial consequences. The court explicitly stated that an understanding of how marriage would affect existing testamentary dispositions was not a prerequisite.
This creates a dangerous loophole. A person may have lost the capacity to make a new will (or to alter an existing one) but still be deemed to have the capacity to marry. A predator can exploit this by marrying the vulnerable person, thereby automatically revoking their existing will under section 18. Upon the victim’s death, the predator, as the surviving spouse, is entitled to a substantial portion—or all—of the estate under the intestacy rules. The intended beneficiaries, often the victim’s children or other family members, are left with nothing, and the victim's lifelong testamentary wishes are defeated.
The case of Joan Blass, frequently cited by campaigners, is a stark illustration. Mrs Blass, aged 91 and suffering from severe vascular dementia, was married by a man 23 years her junior. Her family were unaware of the marriage until after her death. The marriage revoked her will, which had left her estate to her children. As her husband, the man inherited her entire estate under the rules of intestacy. Her family challenged the marriage, but proving a lack of capacity to marry retrospectively is exceptionally difficult (Ministry of Justice, 2023). Section 18 was the legal mechanism that allowed the perpetrator's scheme to succeed. It did not protect a vulnerable spouse; it enabled the exploitation of a vulnerable testator.
The Inadequacy of Existing Safeguards Against Predatory Revocation
Proponents of retaining section 18 might argue that other legal doctrines provide sufficient protection against such abuse. These include challenges to the validity of the marriage on the grounds of lack of capacity or undue influence, and claims under the Inheritance (Provision for Family and Dependants) Act 1975. However, these safeguards are often inadequate and place a heavy burden on the victims and their families.
Challenging the validity of a marriage post-mortem is a formidable task. Capacity to marry is assessed at the time of the ceremony. Registrars of marriages are not trained to conduct mental capacity assessments and have limited powers to halt a wedding even if they have concerns (House of Commons Justice Committee, 2023). Evidence of a lack of capacity, especially for a person with fluctuating cognitive abilities, can be difficult to gather retrospectively. Moreover, the doctrine of undue influence in the context of marriage is notoriously difficult to prove. Unlike in the context of lifetime gifts or contracts, there is no presumption of undue influence in the formation of a marriage; it must be proven by actual coercion, which is often impossible to evidence when the main witness (the deceased) is no longer available.
The Inheritance (Provision for Family and Dependants) Act 1975 does offer a potential route for redress for disinherited children or dependants. They can apply to the court for "reasonable financial provision" from the estate. However, this is a discretionary and unpredictable remedy. The litigation is often costly, emotionally draining, and uncertain. The court must balance the claimant's needs against the financial resources and needs of the surviving spouse, among other factors. A predatory spouse may still receive a significant portion of the estate, and there is no guarantee that the original beneficiaries will receive what the testator intended. Crucially, the 1975 Act provides a remedy after the injustice has occurred and the testamentary wishes have been defeated. It is a costly, uncertain cure for a problem that the law itself created. The primary issue is the automatic revocation itself, which sets up the intestacy rules as the default position, favouring the predator.
Evaluating the Case for Reform: Repeal as the Only Viable Solution
Given the manifest problems with section 18, reform is urgently needed. The Law Commission, in its 2017 consultation, provisionally proposed that marriage should no longer revoke a will (Law Commission, 2017, para 10.36). This represents the most logical, effective, and just solution.
Repealing section 18 would mean that a marriage would have no automatic effect on a pre-existing will. The testator's expressed wishes would remain paramount. This approach aligns with the fundamental principle of testamentary freedom and eliminates the arbitrary trap that section 18 currently represents. It would instantly sever the link between a predatory marriage and the automatic financial windfall under the intestacy rules, thereby removing a major incentive for this form of abuse. The predator would no longer be able to achieve their goal simply by getting the victim to a register office; they would have to persuade the victim to make a new will, a process which has far more robust safeguards concerning capacity and undue influence.
The principal counter-argument is that repeal would risk leaving a new, genuine spouse unprotected if their deceased partner failed to make a new will. This concern is misplaced. The 1975 Act provides a robust safety net. A surviving spouse who is not adequately provided for in a pre-marriage will can make a claim for reasonable financial provision. The standard for a spouse under the 1975 Act is higher than for other claimants; it is not limited to what is required for their maintenance but is based on what is reasonable in all the circumstances, including what they might have expected to receive on divorce (see section 3(2) I(PFD)A 1975). This discretionary system is far more sophisticated than the blunt instrument of section 18. It allows a court to consider the length of the marriage, the age and financial needs of both the spouse and any other beneficiaries, and the size of the estate. It can distinguish between a long, loving marriage and a short, predatory one in a way that the automatic revocation rule cannot. It provides protection where it is needed, without automatically overriding the testator’s intentions where it is not. A system based on the 1975 Act balances the interests of all parties, rather than creating a windfall for one at the expense of others.
Other reform options are less satisfactory. For example, one could amend section 18 to create a presumption of revocation that could be rebutted by evidence of the testator's contrary intention. However, this would introduce significant uncertainty and likely spur an increase in costly litigation as parties seek to prove or disprove the testator's intentions. Another option might be to heighten the test for capacity to marry to align it with the testamentary capacity test. While this may have merit in its own right as a measure to protect vulnerable adults, it addresses the problem at the wrong stage and may be seen as an undue restriction on the right to marry. The simplest and cleanest solution is to abolish the revocation rule itself.
Conclusion
The rule that marriage automatically revokes a will is a legal relic that causes more harm than good in contemporary society. Its historical justification is obsolete, and its continued existence imposes an unjust and arbitrary outcome on testators and their intended beneficiaries, fundamentally undermining testamentary freedom. Most alarmingly, it has become a key enabling instrument for predatory marriage, providing a simple route for abusers to disinherit a vulnerable person’s loved ones. The existing safeguards against this form of exploitation are insufficient, costly, and uncertain, placing an unfair burden on the victims.
The argument that section 18 is necessary to protect new spouses is unconvincing. The flexible and discretionary regime of the Inheritance (Provision for Family and Dependants) Act 1975 is far better equipped to provide for deserving spouses while taking account of all relevant circumstances, including the testator’s obligations to others and the nature of the marriage itself. It allows for justice; section 18 allows for a lottery. The Law Commission’s provisional proposal to repeal the rule is therefore correct. Abolishing section 18 would not leave deserving spouses destitute; it would simply mean that the testator's last-expressed wishes are respected as the starting point. It would close a legal loophole that facilitates a particularly cruel form of elder abuse and restore a proper balance between protecting spouses and honouring the principle of testamentary autonomy. In the face of mounting evidence of its exploitation, the time has come to conclude that section 18 of the Wills Act 1837 should not continue.
References
Cases
Banks v Goodfellow (1870) LR 5 QB 549
Estate of Langston [1953] P 100
Re Coleman (Deceased) [1975] Ch 1
Sheffield City Council v E and S [2004] EWHC 2808 (Fam)
Legislation
Administration of Estates Act 1925
Inheritance (Provision for Family and Dependants) Act 1975
Wills Act 1837
Official Publications
House of Commons Justice Committee (2023) Oral evidence: The Work of the Office of the Public Guardian, HC 1279.
Law Commission (2017) Making a Will, Consultation Paper No 231.
Ministry of Justice (2023) A ‘predatory marriage’ happens when a person marries someone who is vulnerable for the purpose of financial gain. This practice cannot be allowed to continue. [Online] Available at: https://www.gov.uk/government/speeches/a-predatory-marriage-happens-when-a-person-marries-someone-who-is-vulnerable-for-the-purpose-of-financial-gain-this-practice-cannot-be-allowed-to-continue (Accessed: [date of access]).
Secondary Sources
D'Arcy, A. (2020) '"Till Death Do Us Part": Predatory Marriage and the Case for Law Reform'. King's Law Journal, 31(2), pp. 244-269.
Du Vivier, J. (2018) ‘The problem of predatory marriage’. STEP Journal, 26(8), pp. 64-65.
Sawyer, C. (2018) Succession, Wills and Probate. 9th edn. Oxford: Oxford University Press.
