The effect of divorce or dissolution on your Will.
Many of you will already be aware that marriage revokes a Will unless it is clear that you were making it in contemplation of marriage. Did you know that divorce or the dissolution of a civil partnership also has an effect on your Will?
Section 18A of the Wills Act 1837 as amended by the Law Reform (Succession) Act 1995 s3(1) provides that where a person makes a Will and subsequently divorces, has their marriage annulled or dissolves their civil partnership then their former spouse or civil partner is deemed for the purpose of the testator’s Will to have died on the date that the marriage or civil partnership ended. This is the date on which the decree absolute or decree of dissolution was issued.
The consequence of this is that if the former spouse or civil partner has been appointed an executor or trustee under the Will then the appointment will not take effect. Similarly, if the former spouse or civil partner were to receive any benefit under the Will then this gift would fail and any substitute gift provisions would apply. If the former spouse was the only beneficiary and there were no substitute provisions then the estate would be distributed in accordance with the rules of intestacy. This may not be how you would like your estate to be distributed.
It is important to remember that if you are currently separated and going through divorce or dissolution, but the decree absolute or decree of dissolution has not yet been issued then Section 18A will not prevent any appointments to your spouse or civil partner taking effect. For this reason you should consider amending your Will even before the divorce or dissolution is completed.
Finally, it is also possible to exclude the operation of Section 18A by including an express declaration within your Will. For example ‘Section 18A of the Wills Act 1837 as amended by the Law Reform (Succession) Act 1955 s3(1) shall not apply to my Will.’ This would be appropriate in circumstances where the Will is being prepared in contemplation of the divorce or dissolution.
This is how divorce can affect your Will.
3 comments
David Young
6th November 2016 at 8:54 am
Excellent piece
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Mary Hall-Galley
18th April 2020 at 3:26 pm
So, my husband and i divorced on 9/3/2020, with his full agreement the marital home was sold, a new property purchased in my name only and the monies remaining were my husbands, he is now living with new partner.
Q1, is the previous JOINT will null and void ?
Q2. in the future could he have any claim on any of my assets, i.e pension (ive removed his name), savings and investments.
If yes to Q2, what action do I need to take?
I find this all very confusing.
Regards
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The Society of Will Writers
21st April 2020 at 4:05 pm
Hi Mary, thanks for your questions, we’ve answered these below for you.
1. Your previous will isn’t completely void. It will still be valid, but any gifts to your former husband in your will won’t take effect. If your husband was appointed as an executor in your will then his appointment will also fail. What this will mean is that anything that was going to pass to your husband will not pass to the people you have named as substitute beneficiaries instead. For example if your will had said you were passing everything to your husband, but if that failed then to your children, your children would now inherit instead.
2. Your former husband might be able to claim against your estate after you pass away, but there are a number of factors to consider so it would be best to discuss this in detail with a Will Writer. If when you divorced there was a consent order it’s unlikely that your former husband would be able to make any claim against your estate if you passed away. This is because usually these kinds of orders have a statement in them barring these types of claim. If he remarries then he won’t be able to bring a claim against your estate.
If you’ve recently divorced then now is probably a good time to look at updating your will. The best thing to do would be to speak to a professional Will Writer about this who would be able to talk to you about your situation and give you the appropriate advice about what you’d need to do to exclude your former husband from your will. If you take a look at the ‘Find a Member’ section of our website you’ll be able to find a Will Writer near you, or alternatively give our office a call on 01522 687888 and we’ll be happy to help you find someone.
I hope this helps.
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