Revoked Will

[Tilly Mint]

SOL was resident in South Africa. He made his will in 2002 and four weeks later got married - both in South Africa. The person named as the beneficiary of his South African estate was the woman he married and the beneficiaries of his UK assets were his children. i am the executor. Probate was applied for months ago and the District Registry have only now decided that an Affidavit of Foreign Law is required because the will was executed prior to marriage. Can you please tell me what this is? I am reluctant to incur legal fees at this stage as I may not be able to reclaim them from the estate and before I seek advice I would like to have a better understanding of what I'm taking about!

[Buenchico]

Under the laws of England and Wales (but not of Scotland), a will is automatically revoked by marriage. The only exception is where the will states that it was drawn up 'in contemplation of marriage' and that it shall not be revoked by that marriage.

So, if SOL had been living in the UK, his will would have been automatically revoked (unless it had the relevant 'contemplation' clause in it), four weeks after he wrote it, on the day that he got married.

You have applied for probate (I assume in England or Wales) but the will you have produced to the probate office is, on the face of it, completely invalid because of the automatic revocation by marriage.

To convince the probate office that the will was not revoked by the marriage, you need to show that the will was subject to the laws of South Africa and that, under those laws, the will has not been revoked. To do so, you need to produce an affidavit, which has been sworn by someone with knowledge of the South African legal system, to state that the revocation of wills by marriage is not automatic under S.A. law.

Chris

[Buenchico]

PS: While getting free advice from lawyers isn't easy, I've sometimes found (in the course of working in journalism) that academics will at least reply to an e-mail and 'provide a few pointers'.

It might be worth trying a grovelling e-mail to Roda Mushkat. She's Professor of Law at Brunel University (so there won't be much she doesn't know about English law) but she also happens to hold a Doctorate in Law from South Africa. A brief e-mail along the lines of "I'm sorry to trouble you but I don't know where else to turn . . .", seeking advice about whether you need to speak to an English solicitor or a South African one (and, if so, how could you make contact) might get you started in your quest for accurate information:
http://www.brunel.ac.uk/about/acad/sssl/ssslst aff/lawstaff/rodamushkat

Chris