An ongoing case recently saw a summary judgment application decided by the Court (Lattimer v Karamanoli [2023] EWHC 1524 (Ch)). The claim was brought by the deceased’s husband and the Defendant was the sister of the deceased. The trial of this matter is yet to be listed but the Master Clark made some helpful comments in the application judgment.
In this case the deceased, Dr Evi Kalodiki, made a Will on 27 December 2018 and legally married the claimant, Dr Lattimer, on 28 December 2018. The deceased died on 31 December 2018 leaving an estate worth £10million, which included assets in England and Cyprus.
The deceased was terminally ill with lung cancer and living in a hospice. On 27 December 2018, the deceased and the claimant discussed marriage, in so far as the claimant did not want to be left “unsupported to face her family” and the deceased asked if he was proposing to her. The claimant agreed to marry the deceased. She asked her friend, Father Damian Konstantiou , to arrange a religious ceremony and a Will was discussed between the Father, the deceased and the claimant. The Father and deceased dictated the Will and the claimant wrote it down. The Will was duly witnessed.
The deceased’s Will divided her estate into six equal parts, with Dr Lattimer and the defendant both set to receive 1/6 each. 4% of the estate was set aside for legal fees. The Will did not make any reference to a future marriage and simply stated that it was her “last and only Will”.
The claimant made an application to the Court for summary judgment arging that the marriage revoked the Will, meaning the deceased died intestate. This would have resulted in him inheriting substantially more than a 1/6 share of the Estate. The defendant defended the application on the grounds that the Will was made in contemplation of marriage, the Will intended to refer only to the English estate and the marriage was invalid.
Where a person dies intestate, they die without a valid Will. The intestacy rules then apply to determine who is a beneficiary of the estate. As the deceased had children, the claimant, if the deceased is found to be intestate, would inherit:
The children would inherit the other half of the estate.
The general rule is that marriage revokes any Will made by either party before the marriage, under s.18 of the Wills Act 1837. The exception to this rule in that it appears from the Will at the time it was made that the deceased was expecting to marry a particular person and the deceased intended the Will or a particular gift in the Will would not be revoked by that marriage
The defendant’s argument was that the deceased had already decided to marry the claimant before she made her Will. At the time of writing the Will, the religious ceremony was being arranged for that same day.
If a Will is intended to survive a marriage, it is important that the Will reflects this. This can be with reference to a fiancé or more specifically stating that the Will is made in contemplation of marriage to a specific person.
Where there is ambiguity or confusion, the court is entitled to interpret the words of a document, including a Will, to find its true meaning.
The principle for interpretation of a document is set out in Marley v Rawlings [2015] AC 129 is that
…the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in 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 parties at the time that the document was executed, and (v) common sense, but, (b) ignoring subjective evidence of any party's intentions.
The above principle is modified when looking at Wills by s.21 of the Administration of Justice Act 1982, which states other evidence, including that of the deceased’s intention, can be admitted as evidence to assist with interpretation of an ambiguous Will.
The court in this application decided there is a real prospect of success in the defendant showing that the words “my last and only will” is ambiguous – either in terms of the words used or the circumstances. The court was also of the view that the defendant has a real prospect of establishing that the deceased knew she was dying (she was a vascular surgeon), the deceased intended the will to be her last and that the Will was intended to cover the marriage.
The court has the power to rectify a will under s.20 of the Administration of Justice Act 1982.
The defendant would need to establish either a clerical error on behalf of the claimant or the Father in taking down the deceased’s wishes or a failure on the claimant or the Father’s part to properly understand the deceased’s instructions.
The court was of the view that cross-examination of witnesses at trial would be needed to determine whether there was any error or failure to understand. It was noted that emotions would have been high and the true intention of the purpose of the Will could have been overlooked when writing it down.
The test for capacity to marry is a relatively low one and is different to testamentary capacity (the ability to create a Will).
All that is required for capacity to marry is that a person understands the nature of the contract they are entering in to and that it comes with responsibilities normally attaching to marriage or civil partnerships. There is a presumption that when consent to marry is given, because the contract is simple, it doesn’t require a high degree of intelligence to understand.
Testamentary capacity, as set out in Banks v Goodfellow in 1870, requires a person to:
The court decided the defendant has no real prospect of establishing that the marriage was invalid. Understanding the concept of marriage and understanding whether marriage will revoke a Will are separate, and the latter would fall under testamentary capacity and to the validity and/or interpretation of the Will rather than the marriage.
If you are concerned that a Will may be affected by a marriage or that it may be invalid due to the deceased lacking capacity at the time, contact either Jennifer Laskey ([javascript protected email address]) or Rachel Leatherland ([javascript protected email address]) who will be able to advise you on the next steps.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
To contact us, please fill out this form and we will get back in touch as soon as possible. Your personal data will be processed in accordance with our privacy policy which can be found here.
Thank you for your enquiry. We will respond as soon as possible.
