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05.03.18

‘Revoking Wills- California Style’ – Article by Josh Lewison

The automatic revocation of wills has been highlighted recently, partly as a result of three cases: one from England, one from Georgia and one from California.

We are currently waiting for the Law Commission to reply to the responses to the consultation on will reform. However, the initial consultation indicated that the Law Commission did not consider that any change was necessary. The law of revocation in England has been settled for many years. On a testator’s marriage or civil partnership, his or her will is automatically revoked unless it appears from the will that it was made in contemplation of marriage or civil partnership to a particular person.

The English position is clearly a sensible one. Marriage is a serious life event, which ought to be recognised in a spouse’s testamentary arrangements. If, for example, a newly married spouse died without updating his or her will, the surviving spouse might not be provided for. They would be left to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, and would be exposed to the risks, stresses and expense that litigation brings.

In England, the fact that a will is revoked automatically on marriage has recently been held to be information that an intending spouse must understand in order to have capacity to marry. In Re DMM, a man with Alzheimer’s disease had made a will in 2013, leaving substantial gift to the woman with whom he cohabited and the residue to his daughters. By 2016, the man and his partner wished to marry, which among other things would revoke his will. A dispute erupted between the daughters and the partner as to whether he had capacity to marry. In the result, he did. The judge held:

“…all you need to know is ” What you wanted to happen on 11 December 2013 cannot happen because your will is invalid because of the marriage “. If you cannot understand that how are you said to be able to understand, retain, use and weigh information as to the reasonably foreseeable consequences of the marriage?”

In England, then, the connection between marriage and revocation is well-settled and well-understood. However, the position in England and Wales does not address the situation in which a testator has one or more children after making their will, but does not execute a codicil or a new will to take account of the change in circumstances. In most cases, it will be enough if the spouse is provided for. However, if the testator was not married to the other parent, or is divorced from them, the children may not benefit automatically.

A recent case I was involved in illustrates the shortcoming of the law. The testator made a will in the 1980s, leaving his estate to one of his parents. Subsequently, he had a number of children by different women. He died having never married and without having updated his will. The children were left to bring claims under the Inheritance (Provision for Family and Dependants) Act 1975.

So, what can we learn from our friends in California?

The California probate code offers protection to spouses and children who are not provided for by will. Rather than an automatic revocation of the whole will, which would affect third party expectancies, California offers a more flexible solution.

If a spouse is not provided for by the decedent’s testamentary instruments, and those instruments were executed before the marriage, he or she is entitled to a half share of the community and quasi community property (in England we would recognise those as a beefed-up version of the ‘marital assets’), plus an intestacy share of the decedent’s separate property. The surviving spouse may lose that right if the decedent has specified in their testamentary instruments that they are making no provision for the survivor, or if the survivor has been provided for outside the will, or if the survivor has waived their rights.

Similarly, if a child is born or adopted after the execution of all the testamentary instruments, and no provision is made for that child, the child is entitled to an intestacy share in the decedent’s estate. The child may not be entitled if it is apparent from the testamentary instruments that the failure to make provision was intentional, or if the decedent directed substantially all of his or her estate to the omitted child’s other parent, or if the child was provided for outside the estate.

Currently pending in the California courts is a case in the estate of Kirk Kerkorian, the billionaire philanthropist. His will made no provision for his surviving spouse, who is now seeking an intestacy share. If successful, she will receive one third of a $2 billion estate. Kerkorian’s executor claims that the spouse was given $10 million and executed a waiver. So, on his case, two of the exception criteria might be might. The spouse claims that the waiver was invalidated for various reasons. The most recent skirmish concerns joinder of the executor and is also an interesting perspective on the participation of executors in estate claims.

Georgia law has a similar provision, which has been illustrated in another recent case. Interestingly, the principle in California is known as ‘pretermission’, but in Georgia is known as revocation. In Hobbs v. Winfield, the Supreme Court of Georgia was considering a privileged will, executed by the testator while serving in the armed forces. Under the Georgia Code, a will may be revoked in part on marriage or the birth of a child. The revocation extends to providing the same share to the spouse or child as they would have received on an intestacy.

The California and Georgia approaches have two notable advantages over the English approach.

The first is that they cater to a more extensive range of situations. In my case, the testator’s children would each have received a quarter of the estate automatically, subject to any other 1975 Act claims. It would have saved them the time and cost of issuing proceedings and they would not have been reliant on the discretion of the court, because their entitlement would have been fixed.

The second advantage is that under California law, the will is not revoked in its entirety. In England, revocation is total, so that the newly-married testator is left intestate. Friends, relatives and charities who have no right to benefit on intestacy lose out. That was the result in Re DMM, subject to the possibility of reinstating the previous testamentary arrangements under a statutory will. In the world of fiction, Wilkie Collins illustrated the potentially dire consequences in No Name, where unmarried parents married but then died before they could provide for their two illegitimate daughters by will. Under the law as recounted in the novel, illegitimate children had no rights on intestacy. The daughters were left with nothing, to try to make their own way in the world. By contrast, in California, the omitted spouse takes the equivalent of an intestacy share, permitting the other beneficiaries under the will to participate in the estate. The rules of abatement take care of the rest.

It remains to be seen what the Law Commission will come back with. However, I suggest that these recent cases show that we can often learn from other jurisdictions, even where our own rules have been in place for many years.

Article by Josh Lewison.