Revocation of will by subsequent formation of civil partnership: Court and Others v Despallieres [2009] EWHC 3340 (Ch).

Section 18B (1) of the Wills Act 1837 contains provisions with regard to the revocation of a prior will by the formation of a civil partnership, which parallel those contained in section 18 of the act in relation to marriage.

Section 18B(1) provides that a will is revoked by the formation of a civil partnership between the testator and another person unless, under sub-section 3, ‘it appears from a will:

(a) that at the time it was made the testator was expecting to form a civil partnership with a particular person; and (b) that he intended that the will should not be revoked by the formation of the civil partnership.’
Peter Ikin (the deceased) was in his 50s and a successful executive in the music industry. He owned substantial assets. He had made a will in 2002 which left his estate to friends, family members and three Australian charities.

By about April or May 2008, the deceased had formed a close relationship with a much younger man, Alexandre Despallieres (the defendant).

The defendant alleged that the deceased had made a will in August 2008 but family members claimed it was a forgery. However, as the defendant and the deceased had formed a civil partnership in October 2008 the disputed will would have been revoked in any event unless it complied with sub-section 3.

The will was as follows:

‘I the undersigned Peter Anthony Ikin do by the present:
1. Revoke all former wills and testamentary dispositions heretofore made by me and declare this to be my irrevocable last will and testament.2. Direct that this, my last will and testament shall not be revoked by neither subsequent marriage, civil union partnership nor adoption.3. Declare that my country of domicile is the United Kingdom.4. Give and bequeath to Alexandre Renaud Marcel Despallieres the entirety of my estate as a sole beneficiary.’
Mr Justice Arnold held that sub-section (3) was not complied with. The sub-section requires that it appear from the language of the will in question that the testator (1) expected to form a civil partnership with a particular person, and (2) intended that the will should not be revoked by that marriage.

Clause 2 of the 2008 will did not satisfy these requirements. It was merely a general statement that the 2008 will was intended to survive marriage, civil partnership or adoption; it did not show that the deceased expected to form a civil partnership, let alone with a particular person.

The defendant argued that clause 2 was sufficient, at least if read together with clause 4, which made the defendant the sole beneficiary. But Arnold J did not accept this. There was nothing in the will to indicate that there was any connection between clause 2 and clause 4.

There are two general points that emerge from the decision: remember that entering into a marriage/civil partnership will revoke a prior will unless it contains a suitable clause or is confirmed by subsequent codicil, particularly important in the case of deathbed marriages/civil partnerships; use a proper precedent when a will is genuinely made in expectation of marriage or civil partnership.

Lifetime gifts and lack of capacitySutton v Sutton and another [2009] EWHC 2576 (Ch) An elderly donor’s gift of the family home to his son was held to be invalid because he lacked the mental capacity to make it. But Christopher Nugee QC declined to decide whether the transfer to the son was void or voidable because:The judgment highlights an area of uncertainty and is a useful review of the conflicting authorities.

  • It made no difference in this case;
  • The point was not fully argued; and
  • (His overriding consideration) the law was unclear.

The case also confirms that the degree of understanding required when an individual gives away his principal asset is a high one (see Re Beaney [1978] 1 WLR 770). The test is similar to that required for making a valid will.

On these facts, the donor had to be capable of understanding the general nature of the transaction, the claims of other potential donees, and that the effect of the gift would be to deprive himself (and, in this case, his wife) of any entitlement to the house or any legal right to stay there.

Statutory willsIn Re M, ITW v Z [2009] EWHC 2525 Lord Justice Munby agreed with Mr Justice Lewison in Re P [2009] EWHC 163 (Ch) that the approach to statutory wills made on behalf of those who lack capacity (P) has been changed entirely by the Mental Capacity Act 2005.

Before the act the court’s job was to make the will that the patient himself (if not mentally disordered) would have made. The patient was assumed to have had a brief lucid interval at the time when the will is made and the court then attempted to make the will which the actual person would have made, taking into account his antipathies and affections.

The act introduced a new legislative framework dealing with loss of mental capacity. Section 1 requires all decisions made under the act to be made ‘in his best interests’. Section 4 expands on the concept of ‘best interests’ and provides that the person making the determination must consider all the relevant circumstances and, in particular, the factors set out in the section.

Lord Justice Munby said that the structured decision-making process required by the act was similar to that required in the Family Division under various statutes including section 1 of the Adoption and Children Act 2002, and section 25 of the Matrimonial Causes Act 1973.

Drawing on that experience he made three points:

  • The statute lays down no hierarchy as between the various factors which have to be borne in mind;
  • The weight to be attached to the various factors will, inevitably, differ depending on the individual circumstances of the particular case; and
  • There may, in the particular case, be one or more features or factors of ‘magnetic importance’ in influencing or even determining the outcome.

Professor Lesley King, College of Law, London