Report No. 110
III. Revocation by Subsequent Events: Section 69
15.18. Section 69-Revocation by marriage.-
Events subsequent to the execution of a will are sometimes regarded as affecting the subsistence of the will; the most important of such events is marriage. Section 69 provides that every will shall be revoked by the marriage of the maker, except in the special case of a will made in exercise of a power of appointment. The provision may appear to be simple enough, but a few points- some of principle, others of detail-need to be noticed in this connection.
In the first place, there seems to be need for a saving applicable to wills made in contemplation of marriage, and so expressed. Where a will is expressed to be made in contemplation of marriage, it should not stand revoked by the solemnisation of the contemplated marriage. The object of the rule providing for revocation is to protect the interests of the new family1 of the testator, against accidental survival of the old will. Where there is a deliberate decision that the will shall survive the marriage, the law need not upset that intention.
Secondly, where a marriage is not valid, there should be no revocation of the will by virtue of the marriage.
Thirdly, "marriage" in this context should include a second (or subsequent) marriage, and need not be confined to the first marriage.
Indian commentaries on the Succession Act usually make a statement of the position as to some of the points brought out above, without, however, expressing any opinion as to the desirability of amending the section on one or more of these points.
1. Cf. Mitchell Revocation of Testamentary Appointments on Marriage, (1951) 67 LQR 351.
15.19. Need to provide against automatic revocation of will on marriage.-
There can hardly be any doubt that if a will is expressly made in contemplation of marriage, the subsequent marriage should not amount to a revocation of that will. This principle should find a place in the Act, and should be elaborated as above1. An express provision regarding mutual wills would also be justified, for obvious reasons.
1. Para. 15.18, supra.
15.19A. Marriage and divorce-effect on wills-recent reform in England.-
Provision has been made in England by the Administration of Justice Act, 1982 for the revocation of a will by marriage, except in certain cases. This has been achieved by revising section 18 of the Wills Act, 1837. This implements the recommendations of the Law Reform Committee1 on the subject.
As to the effect of dissolution or annulment of marriage on wills, there was disagreement among the members of the Law Reform Committee which considered the subject. Now, section 18A, inserted in the Wills Act, 1837 by the Administration of Justice Act, 1982, makes an appropriate provision under which (except where a contrary intention appears in the will), divorce or annulment of a marriage or recognition that a marriage is voidable has the following effects on the wills of the former spouses:-
(i) any appointment of a former spouse as an executor or executries/ trustee is ineffective and a grant of letters of administration with the will annexed may be necessary [section 18A(1)];
(ii) any devise or bequest to the former spouse will lapse and the relevant property will fall into residue or (if there is no residuary bequest) pass on intestacy [section 18A(1)], unless it is a life interest, as to which see
(iii) any interest in remainder (vested or contingent) dependent on the termination of a spouse's life interest will be accelerated by the lapse of the life interest under (ii) above [section 18A(3)].
The former spouse, affected by (ii) or (iii) above, may still make a claim for "reasonable financial provision" under the Inheritance (Provision for Family and Dependents) Act, 1975 [section 18A(2)].
1. Law Reform Committee, 22nd Report (Making and Revocation of Wills) (1980), Cmd. 7902, paras. 3.10, 3.11 and 3.18.
15.20. Marriage-meaning of.-
According to judicial interpretation, "marriage" means a valid marriage. That is the ordinary legal understanding of the expression and need not be codified. The same comment applies to a second marriage, which seems to be included within 'marriage'.
15.21. Conflict of laws concerned with subsistence of a will.-
Sometimes, an interesting question of conflict of laws concerned with the subsistence of a will arise under such a provision as is contained in section 69. In an English case,1 a French woman, while residing in England, executed in England a will which was valid according to French law. Subsequently, she married a French man, but continued to reside in England till her death. It was held that on her marriage, the woman acquired the domicile of her husband which was French and the will was governed by French law and was not revoked by her marriage, since the French law did not provide for automatic revocation of the will on marriage.
1. Loustelan v. Loustelan, 81 Law Times 459, cited by Paruck Succession Act, (1966), p. 121.
15.22. Law of domicile applicable.-
That the revocation of a will on marriage is governed by the law of domicile is recognised in another English case.1 In that case, a foreigner had made a will which was valid according to the law of his native country, he after wards married in accordance with the law of England, having at that time an English domicile. It was held that the marriage revoked the will.2 There is, however, one aspect of the English rule (as laid down in the judicial decisions) which requires some comment.
That marriage revokes a will is regarded by English case law as a part of the domain of matrimonial law. The result is that the positive rule of the English law on the subject applies only (and always) if the spouses have an English domicile at the time of marriage.3 Since the validity or the nullity of will does not operate until the testator dies (i.e. until the marriage itself comes to an end), the English theory has been regarded by some authors as inappropriate.4 Although Cheshire5 would seem to approve of the rule as adopted in England, there is much to be said for the opposite view.
In our opinion, while revising the section, it is desirable to make a clear statement of the position as to the law that will apply for determining the effect of marriage as revoking a will. As to the content of the provision in that regard, we are of the view that it should be the law which was the law of the domicile of the testator at the time of death that should govern the matter. This would be more practicable, for the reasons stated above.
1. Re Hartin, (1900) Probate 211 (CA).
2. Cf. Sykes & Prytes Australian Private International Law, (1979), p. 461.
3. Wolff Private International Law, (1950), p. 594.
4. Wolff Private International Law, (1950), p. 594.
5. Cheshire Private International Law, (1970), p. 602.
15.23. Recommendation to revise section 69.-
In the light of the above discussion, we recommend that section 69 should be revised as under:-
Revised section 69
"69. Revocation of will by testator's marriage.-(1) Every will, not being a mutual, will, shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
Explanation.-Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.
Exception.-A will expressed to be made in contemplation of a marriage or indicating an intention that it was so made shall not be revoked by the solemnisation of the marriage contemplated; and such an intention may be inferred from any portion of the will showing that marriage was thought of
(2) Where the law of domicile of the maker of the will at the time of death has different rule that rule shall prevail, and the provisions of sub-section (1) shall not apply to the extent to which there is inconsistency between the tzvo."