Making a will is one of the most important tools available to ensure you can leave your possessions to the people of your choosing. Without a will in place your estate will be allocated according to the strict rules of intestacy which may not reflect your wishes.
However, as Dee Benians a private client lawyer at Hughes Solicitors in Heathfield explains, replacing your will with a totally new one when your life circumstances change is equally important – particularly if you marry or divorce.
Effect of marriage on a will
When you get married or enter into a civil partnership, any will that you already have in place is automatically revoked and therefore becomes invalid. The only exception to the rule is where a previous will has been expressed as having been made in expectation of the marriage to your new spouse.
In the absence of an ‘expectation of marriage’ clause in your will, this means the intestacy rules would apply on your death, which, depending upon the value of your estate, could have the effect of your whole estate passing to your new spouse or civil partner. This may not be what you intended – especially if you have children from a previous relationship.
It is vital, therefore, if you are planning to get married, to ensure that you draw up a new will. This can be done immediately after your wedding or beforehand when the will can be drafted so that it is certain that it should still take effect after your marriage.
Effect of divorce on a will
Unlike marriage, divorce or annulment does not void or invalidate your will. Any bequest you had made to your former spouse would automatically lapse on the date of the court order which finalises the end of your marriage. The gift to your former spouse would be treated as if they had died from the date of the final order.
If there are other beneficiaries in the will other than your ex-spouse, any assets you had left in your will to your former spouse would go into the residuary estate and be distributed to the rest of the beneficiaries.
If, however, your former spouse was the only beneficiary and you died after your divorce final order, the rules of intestacy would take effect and the decision as to how your assets are distributed would be taken out of your hands.
Another factor to consider is if you have named your ex-spouse as an executor or trustee of a trust for the benefit of any children in your will. Again, the Will would still be valid, but would take effect as if your spouse had died on the date of the final order. They would not be entitled to take up these positions and any trust naming them as a trustee would fail.
If your ex-spouse is named in the will, it is imperative to draw up a new will in the event of your divorce. You can do this at any time between separation and divorce – it is not necessary to wait for the final order to come through.
How a lawyer can help
Our specialists can advise you how you how your new will can be structured and draft it in a way that reflects your wishes and provides for all your loved ones.
They will talk you through the tax implications of the various types of will, so you can ensure you choose the right one for you, and then ensure that it is legally valid and clear and thus less open to legal challenge.
We will help you select executors, trustees and guardians and will even store the will for you if required.
For more information, please contact our private client team on 01435 890 101 or email Dee Benians at deebenians@hugheslaw.co.uk.
This article is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this article was published.