Wife not entitled to deceased husband's entire estate, High Court rules

A High Court ruling means that a woman who married her long term partner and fiancé four days before he died from cancer is not entitled to inherit his entire estate.

In his will of June 18th, 2019, John McPartlan, a primary school teacher, left his house at 31 Ascal Ribh, Artane, to be divided equally between his seven siblings.

He left the residue of his estate, amounting to just over the value of the house, to Carol Graham. They were in a relationship from 1996, got engaged in 2011 and married on August 8th, 2019. Mr McPartlan was terminally ill with cancer at the time of the marriage, in a hospice, and he died four days later.

The couple had grown up respectively in numbers 31 and 40 Ascal Ribh but, while in a relationship from 1996, did not live together until 2014 because they were both caring for their mothers.

After Mr McPartlan’s mother died in 2014, he inherited No 31 and moved into No 40 to live with Ms Graham and her mother.

After Ms Graham’s mother died in 2015, Ms Graham inherited No 40 and she and Mr McPartlan continued to live in No 40 until his death.

Mr McPartlan had appointed his sister Linda Dinneen and his brother Patrick McPartlan as executors of his estate.

The executors applied to prove the will of June 18th, 2018 and the issue for the High Court was whether that will was revoked by his marriage, with the effect Ms Graham would be entitled to the entire estate on the basis of intestacy.

In his recently published judgment, Mr Justice Senan Allen noted section 85.1 of the Succession Act provides “a will shall be revoked by the subsequent marriage of the testator, except a will made in contemplation of that marriage.”.

Contemplation of marriage

Section 85 does not require that anyone other than the testator should have contemplated the marriage or there should have been a proposal or an acceptance, he said. An engagement to be married is an agreement to marry, he added.

While Ms Graham was made to flatly assert in her affidavits marriage was not contemplated in June 2018 when Mr McPartlan made his will, that issue was for the court to decide, he said.

The legal test was whether, when he made the June 2018 will, Mr McPartlan had in his mind, or had regard to, his marriage to Ms Graham.

While not apparent in the will itself, it was “abundantly apparent” from the other evidence, starting with Mr McPartlan’s declaration in a letter to his solicitor of April 2019 he hoped and expected to be married the following April to “my fiancée Carol Graham” and his purchase of a wedding ring the following day, the judge said.

That was confirmed by instructions he had previously given to his solicitor in July 2011, after the couple’s engagement.

His solicitor’s advice a new will would be required after the marriage “cements” the proposition that marriage was contemplated, the judge said.

The marriage contemplated can only be that which subsequently took place “and not a marriage such as that contemplated by Miss Jane Austen in the opening lines of Pride and Prejudice”. The evidence was the deceased wished to marry Ms Graham and that he contemplated that he would, or might.

The 2011 engagement of the couple was the agreement of each to marry the other at some time in the future which agreement endures until the engagement is broken off or the marriage occurs, he held.

Setting a date

Earlier, the judge noted Ms Graham’s sworn evidence was, after his mother’s death in 2014, Mr McPartlan would raise marriage with her but they had not reached agreement they would get married. Whatever about Ms Graham, the evidence was Mr McPartlan was “enthusiastic to set a date”, the judge said.

Ms Graham said she and the deceased spoke about getting married and discussed possible dates in July 2019 or April 2020 but never fixed a date.

Mr McPartlan had retired in late 2018 and was diagnosed with cancer in February 2019 with an initially optimistic prognosis. He instructed his solicitor in May 2019 he hoped and expected to be married to “my fianceé Carol Graham” the following April and wished to update his will “to reflect our new situation”. He bought himself a wedding ring and executed the will on June 18th 2019.

Correspondence indicated he was aware the will would have to be rewritten after “our intended marriage in April 2020”.

Ms Graham’s evidence was, until Mr McPartlan got his terminal diagnosis in late July 2019, there was no plan to get married. She said she had told him she did not want to get married in such sad circumstances but he had said: “Please humour me, it’s a man thing, I need to provide for you.” After they married in St Francis Hospice on August 8th 2019, Mr McPartlan had told her: “Everything is yours now, I told you I’d look after you”, she said.