Lattimer v Karamanoli related to the estate of the late Dr Evi Kalodiki, a former vascular surgeon, who was terminally ill with cancer when she and her partner (Dr Lattimer, the Claimant) decided to marry. A key issue in the case was whether a will executed just days before a marriage was made in contemplation of that marriage or whether the subsequent marriage served to revoke the will.
Background
Evi was Greek Orthodox and asked her friend, Father Damian Konstantiou, to arrange a Greek Orthodox ceremony at the hospital chapel of her hospice. At her request, together with the Claimant, he also helped to draft a will. On 27 December 2018 the religious ceremony took place and the will was signed that day. The subsequent legal civil marriage took place on 28 December and Evi died on 31 December. In issue was whether the will signed on 27 December was revoked by the subsequent civil marriage. Under English law, the Wills Act 1837 states that a will is revoked by marriage unless it can be shown that the will was entered into in anticipation of marriage.
The estate
Evi's estate was understood to be worth around £10 million, of which around £3 million was in England, the rest in assets in Greece and Cyprus. Under the terms of the disputed will, her estate was divided six ways with the Claimant receiving a sixth of the estate. If the will was revoked by marriage, Evi would have died intestate, meaning Evi's entire English estate would pass to the Claimant, who had remarried since Evi's death.
Hearing
The preliminary matter before the Chancery Division was an application by the Claimant for summary judgment of part of his claim and strike out of the Defendant's (the Deceased's sister) counterclaim, which included a claim to rectifythe wording in the will as it was her position that the will was made in contemplation of marriage. Summary judgment is the means to bring to proceedings to an end without a full trial or hearing. To succeed in a summary judgment application, the Court must consider whether the applicant has no real prospect of successfully defending the claim or issue and that there is no other compelling reason why the case or issue should be disposed of at a trial.
There were a number of points considered by Master Julia Clark. These included whether the marriage was valid or whether she lacked capacity to marry; whether the will was ambiguous (a matter of interpretation); whether the Defendant had a real prospect of showing that the will failed to reflect her intentions and whether the will was intended to survive her upcoming marriage, despite no clause to this effect having been included in the will (as would usually be the case in a professionally drafted will).
The Defendant failed to show that Evi lacked capacity to marry (the Defendant was actually present when the wedding took place) or that there were public policy grounds to find the will invalid. However, it could not be shown that the Defendant had no real prospect of establishing that the Claimant and/or Father Damian made a clerical error or failed to understand Evi's wishes in relation to her will. This would need to be determined at trial, as would the interpretation claim in relation to whether the words "my last and only will" and "my estate" were ambiguous. The summary judgment claim, therefore, failed, as did the Defendant's counterclaim for rectification of her defence to include allegations that the marriage was void or of no effect.
Conclusion
The legal position in England and Wales that a will is revoked by marriage has been the subject of consideration by the Law Commission in recent years, initially as part of a 2017 consultation. In Scotland, the position is different and a will is not revoked by marriage. The Law Society recently carried out a survey on will reform, including on this specific issue, and it is understood that a further consultation will take place in the Autumn. One possibility is that a marriage will not revoke a will where the testator is found to lack capacity to marry. We await this consultation with interest, as well as the main trial of this matter, likely to take place next year.