Later Marriage or Birth of Child Flashcards
Why revoked on marriage?
Family protection device. To ensure wives got some money to provide for their children.
Advantages of revoking after later marriage
Marriage is such a crucial event in succession law that it is likely to change the entire construction of the will and who estate should go to.
Most married people would want spouses to inherit
Legal share is far less than right on intestacy
Effect of later marriage in other counties
Alberta & British Columbia, USA have all abolished but under UPC, you can make a claim if will does not provide adequately for you
Disadvantages of revoking will in event of later marriage
Might contradict testator’s intentions. Law should be careful when meddling with wills
2nd marriages common - people might not want to benefit new spouse at expense of children from previous marriage. Still get legal rights
If whole will revoked, charities, friends etc will not have claim
Contrary to public opinion
What is the conditio si testator sine liberis decesserit?
Will can be revoked if children born after date of execution of a will
Presumption that testator did not wish for his will to be effected in these different circumstances
Only if no provision at all
Who can claim under the conditio?
Only the afterborn himself (Greenan v Courtney)
What rebuts the conditio?
Evidence that the deceased did not want to include their child in a will. (Stuart Gordon) mum died after being ill during pregnancy. Considered will but knew baby would get money from other sources so unnecessary.
Not just a long time between birth of child and death of testator (Milligan’s Trs v Milligan)
Why should we abolish the conditio?
Disinherits cohabitants
Can still get legal share
Conditio often of little value when spouse getting so much eg £30k threshold
Only presumption
SLC recommends
Abolish conditio on basis that if surging partner is a beneficiary under the will, child of unworried parents who invokes the conditio disinherits surviving partner
Also just presuming
Need to encourage people to bust change their wills after important life changes
Greenan v Courtney
Widow acting as guardian of children sought declarator that will of her late husband revoked by conditio. 1st wife kept close relationship with deceased who had declined to have new will following births of his children. Extrinsic evidence insufficient to rebut presumption.
Only invoked if produces family benefit
American version of conditio
Equal to what he would have received on intestacy, not including where money given to other parent in will
England and Wales
Generally can be revoked from testator’s marriage unless clear that when made, testator was planning to be married.
