Does Marriage Revoke a Will?

Lattimer v Karamanoli (2023) was an interesting battle over whether a Will should be revoked by marriage is heading for trial.

Evi Kalodiki, a former surgeon, was terminally ill with cancer when she decided to marry her partner, Dr Lattimer. Evi had asked her friend to arrange a Greek Orthodox ceremony at the chapel in her hospice. She also asked him to help draft her Will; the first and only Will she ever drafted. It was not professionally drafted and this has had an enormous impact on what happened next. Both the Will drafting and religious ceremony took place on 27 December 2018, with the legal marriage taking place the next day. Sadly, Evi died a few days later on 31 December 2018.

How does a marriage affect a pre-existing Will?

Under the Wills Act 1837, a Will is revoked by a subsequent marriage, unless it can be shown it was entered into in anticipation of the marriage.

The key issue, in this case, was whether Evi's Will was made in contemplation of the later marriage, otherwise, the marriage would effectively revoke the Will. If a Will is prepared in anticipation of marriage, the easiest way to evidence this is to have a clause in the Will along the lines of “I make this Will in anticipation of my marriage to X”. There was no such clause in Evi’s Will which is unsurprising as it was drafted by a solicitor. Her pending marriage to Dr Lattimer was never mentioned in the Will. But the unusually short timeframe over which these key events occurred would beg the question: surely the Will contemplated the marriage, even if it did not expressly state as much?

Evi was wealthy with an Estate worth approximately £10m in assets held worldwide. Had Evi’s Will survived the marriage, her Estate would be divided between six beneficiaries of which Dr Lattimer was one. However, if the Will was revoked by her marriage, the entirety of her English estate (£3m) would pass under the intestacy rules to Dr Lattimer as her surviving spouse. Evi’s sister (who was the Defendant), who stood to benefit from the Will, sought to defend Dr Lattimer’s claim that the Will had been revoked by their marriage.

The issues at stake

Given the provisions of the Wills Act of 1837 are long-standing and relatively clear, Dr Lattimer sought summary judgment the marriage had revoked the Will and that Evi’s sister had no real prospect of successfully defending this claim. Furthermore, there was no other compelling reason why the case should proceed to a full trial. In her defence, Evi’s sister raised a number of points, the key one being that the Will failed to reflect Evi’s actual intentions. In other words, the Will was plainly intended to survive the marriage despite no express clause being included to this effect, as would be the case had it been professionally drafted. The phrase “my last and only Will” could potentially be interpreted to hold this effect. She also raised issues in relation to Evi’s capacity to marry.

The court had no difficulty finding the marriage was legal and Evi had the capacity to go through the ceremony despite her serious illness. It is irrelevant that Evi did not know the Will was revoked by her marriage. But Evi’s sister successfully fought off the summary judgment application to fight another day. The court determined Evi’s sister had a real prospect of defending Dr Latimer’s claim, on the grounds that Evi’s friend who drafted it could have made a clerical error when preparing the Will or otherwise failed to properly understand her wishes. On this basis, the court found that the Will could potentially be rectified on this basis, despite the base position that a marriage revokes a Will. These issues are due to be determined with further evidence at a full trial.

Conclusion

What is evident from this application to the court is the court’s power of interpretation, which may be more likely to be exercised in unorthodox circumstances such as those where the Will was drafted both by a layperson and so close to the marriage and death. Those are undoubtedly very relevant matters to be addressed at the trial. But it also demonstrates the legal power of marriage, as ultimately the court’s hands may be tied in circumstances where there is less room for interpretation. It also underscores the importance of obtaining competent professional legal advice at the material time. It may not have been easy to find a solicitor to draft the Will at such short notice, but it is not impossible. The solicitor would have undoubtedly inserted the relevant clause in the Will to ensure Evi’s true wishes were met notwithstanding her marriage 24 hours later. We have seen examples of such claims in the past and it will be interesting to see some up-to-date judicial guidance should the matter proceed to a full trial.

If you have any questions concerning a contentious probate claim, please contact Noel McNicholas on 01926 887700 or noel.mcnicholas@thomasflavell.co.uk. This blog was written by Noel, an Associate Solicitor based in our Leamington Spa office. Click here to see his ReviewSolicitors profile where he is rated 4.9/5 stars out of 22 reviews.