If a testator marries after making a will, and the spouse of that marriage survives the testator, the will is revoked as to such spouse, unless provision has been made for such spouse by marriage contract, or unless such spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation can be received.

SOURCE: Probate Code of Guam (1970), § 70.

COMMENT: The purpose of § 401 is to protect the widow or widower of a testator who made his or her will before the marriage; see In re Poisl’s Estate (1955), 44 C.2d 147, 280 P.2d 789, wherein the court held that the purpose of the similar California statute was to secure a specific moral influence on the testamentary act of having in mind a contingent event as momentous as marriage.

Although perhaps confusing at first reading, § 401 operates as follows: Assume that W makes a will in which her entire estate is bequeathed to X; then W marries H; then W dies. By the operation of § 401, W’s will is revoked as to H, so that H takes from W’s estate under the law of succession and X takes the balance (if any) under W’s will. However, if W and H had entered into a marriage contract by the terms of which H would be provided for in the event of W’s death; or if W’s will provided some bequest for H; or if W’s will showed an intention not to make a provision for H; then § 401 would not apply — i.e., the will would not be revoked as to H, and its

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CH. 4 REVOCATION OF WILLS

provisions would govern. An excellent summary of the various types of will provi- sions which A…show an intention not to make … provision…@ for the surviving
spouse is set forth in the discussion following § 70 of the California Probate Code in West’s Annotated California Codes. Also see Comments to §§ 403 and 405, infra.

§ 403. Divorce After Making Will: Will Revoked as to Former
Spouse.

If a married testator makes a will and is subsequently divorced, and the person whose marriage to the testator was dissolved by such divorce survives the testator, the will is revoked as to such former spouse, unless the will shows a specific intent to the contrary; and no other evidence to rebut the presumption of revocation can be received.

SOURCE: Guam Law Revision Commission.

COMMENT: Section 403 provides the opposite side of the coin from § 401, supra. Under the provisions of § 401, if a person makes a will, marries, and then dies without providing for his spouse, the spouse takes some portion of the estate by the law of succession. This seems only fair; as pointed out in the Comment to § 401, that Section exists to protect the surviving spouse, as it inserts into the law a presumption that the testator must have intended to provide for his spouse following the momentous event of marriage, but for some reason did not do so. Similarly, § 403 inserts into the law a presumption that a married testator who is subsequently divorced must have intended to revoke his will insofar as it provided for his former spouse following the momentous event of divorce, but for some reason did not do so. In other words, § 401 protects the spouse, while § 403 protects the testator.