When can a marriage be said to have been ‘solemnised’? What is the precise meaning of that word? That was the essential question before the court in the recent case of M v B, the title and parties in which we are anonymising, in particular because one of them is a minor.
The case arose from tragic circumstances. The deceased, S, died in an accident a year after marrying M (our client) in a humanist ceremony in France, leaving a son, B, from a previous marriage. The ceremony, which had all the outward trappings of a wedding and was celebrated in front of numerous of their friends, did not comply with French marriage law and therefore did not create a legal marriage either in France or in the UK. M and S knew this but were unaware, as are most people in our experience, that as the law stands a marriage automatically revokes any pre-existing will unless it is expressly drafted so as to provide otherwise. In any event, M and S made wills in advance of their wedding ceremony which, in S’s case, contained the following clause:
‘At The Time of making this Will I expect to marry M and intend that this my Will … shall not be revoked by my marriage to the said M … If in any circumstances my said intended marriage shall not have been solemnised by [the date of the ceremony] then my Will shall become void to all intents and purposes.’
Had the marriage ceremony been fully compliant, or had the will not provided that the intended marriage had to be solemnised by a certain date, or had the condition merely been the occurrence of the ceremony itself, all would have been well. The problem was the word ‘solemnised’ in the context of this particular ceremony.
The will was plainly conditional – on solemnisation by a given date – and could therefore only be admitted to probate if that condition had been fulfilled. The question therefore arose as to whether their marriage was ‘solemnised’ by the ceremony they went through, such that the will was valid and could be admitted to probate. This question had more than academic significance: if the will was valid, M had a life interest in S’s house which would then pass to B on M’s death. If it was invalid, M might have had to consider a wasteful and protracted claim under the 1975 family provision legislation, nominally against B, whom he has cared for since S’s death and whom he regards as his own son in all but name.
On first analysis, it might be thought that such a will could not possibly be valid. How could a marriage be ‘solemnised’ when, as the parties knew, the ceremony in question did not create a lawful marriage at all? ‘Solemnised’ is a technical legal term which usually means going through a ceremony that creates a legal marriage. However, in probate claims, the court’s main objective is to permit the clearly expressed wishes of the deceased to be put into effect and to avoid an intestacy where possible. And it was perfectly clear what S had wanted: the will to remain valid if the ceremony went ahead on the date specified, as it had. However, this paradox explains why such an application needed to be made. The court would not have accepted S’s will in a common form probate application. He needed to ask the court to give a definitive ruling on its meaning and pronounce for its validity.
This all imports the issue of the deceased’s wishes into the matrix. Generally, when interpreting a will, evidence of the deceased’s actual intentions are inadmissible; the meaning is assumed to be contained in the words, not in what a third party might later say the deceased had meant. To allow such evidence would risk challenge to any will based on what the deceased might have said at the time or subsequently. However, where a will is meaningless or ambiguous, evidence can be adduced to clarify the intentions under s.21 of the Administration of Justice Act 1982, and it was agreed by both parties in this case that ‘solemnised’ was sufficiently ambiguous in the context of a wedding ceremony which did not create a legal marriage.
The court also considered the leading Supreme Court case of Marley v Rawlings which set out the principle that, just like a contract, when interpreting a will “the court is concerned to find the intention of the testator, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the testator at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party’s intentions.” Point (b) is, in the case of ambiguity such as this, subject to section 21 as referred to above.
Considering all the evidence going to S’s intentions – the nature of the ceremony, the presence of a celebrant and guests, and of course what her will actually said – the court had no difficulty in concluding that, as a matter of construction – ie interpretation of the actual words in the will – the marriage was solemnised in the sense intended, the condition was therefore satisfied and the will valid.
The will in this case was drafted by a will-writing company using computer software to generate the text of the will. This is also a reminder of the risks that consumers face from unregulated will-writers. Getting solicitors to draft a will may sometimes involve a higher up-front cost, but it should reduce the risk of things going wrong when the will eventually has to be admitted to probate.
This article was written in conjunction with James Kirby, counsel of Ten Old Square.