Do Marriage or Divorce have an impact on an existing Will?
I am new to the department, having just moved from my ‘seat’ in our Private Family Department as part of my Training Contract with the firm.
I thought it might be good, given my experience in divorce and matrimonial proceedings, to look at how marriage and breakdown of marriage affects Wills. Do marriage or divorce have an impact on an existing Will? What happens to a Will on marriage or divorce? Do I need to update my Will if I get divorced?
Wills and Weddings
The Wills Act (1837) sets out what happens to a person’s Will when they get married. Wills can be revoked in a number of ways. You could revoke your Will by:
• making a new Will
• making a ‘written declaration’ executed in the same way as a Will
• intentionally destroying your Will or
• getting married or entering into a civil partnership
So, you could revoke your Will without intending to, just by getting married! This is because it is generally assumed that a person would want to provide for their spouse or civil partner in the event of their death and that any existing Will would not account for the new spouse.
Wills made in Contemplation of Marriage
However, Wills can be made in contemplation of marriage. Your Will can be drafted to comply with statute and make it clear that the Will should not be revoked by marriage to a particular person. Such a Will would need to be clear on:
• the name of the future spouse/civil partner
• whether the person making the Will intends this Will to be revoked on the marriage or civil partnership, and
• whether the Will is conditional on the marriage or civil partnership taking place.
The last of the above three points is important. Unless the person making the Will states otherwise, the new Will would stand even if the wedding didn’t happen! This might be what someone wants if they were to die before the wedding, but probably not if the couple separates prior to the wedding.
Wills and Divorce
When a divorce becomes final and ‘Decree Absolute’ is pronounced, a party’s Will would continue to take effect. However, that Will would take effect as if the spouse or civil partner had actually died before the testator, unless the Will shows evidence of a contrary intention. This means that, unless there is intention in the Will which says otherwise, any appointment of the former spouse as an executor or trustee will be omitted and any gifts to the former spouse will lapse . The rest of the Will remains valid.
Claims from a Former Spouse under the Inheritance (Provision for Family and Dependants) Act 1975
Another point to bear in mind is that a former spouse or civil partner who has not formed a subsequent marriage or civil partnership can still apply to the court for financial provision from a deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (‘IPFDA’). The ground for such an application would be, that either the person’s Will or the law of intestacy or a combination of both, have not made reasonable financial provision for the applicant.
Claims under the IPFDA are not the same as ancillary relief claims in divorce. The reasons for the break in the relationship are clearly different and so the claims are treated differently. In the case of IPFDA claims, the break is as a result of the death of a party; in the case of matrimonial proceedings, the break comes because of the decision of one or both of the parties. However, things like the length of a marriage or civil partnership are taken into account, as is the time a couple were in a relationship before marriage.
It is important to bear in mind that if one of the parties to a marriage dies within 12 months of the date of the Decree Absolute but before financial Orders have been made, the Court has the power to treat an applicant under the IPFDA as if the decree of divorce had not been made absolute or the decree of judicial separation had not been granted.
What to do following a Separation from your Spouse
The above factors can be mitigated:
• On making orders for financial provision in matrimonial proceedings, it is possible to order that either party to the marriage shall not, on the death of the applicant, be entitled to apply for an order under the IPFDA . This is commonly included in what is called a ‘Clean Break’ Order.
• On making your Will, you can make your wishes and your reasons for not making provision for someone clear. This can be done by writing a letter to be kept alongside your Will. The Court will take this into account when considering such claims.
A further point to consider is that, if you are married but estranged from your spouse and you die without leaving a valid Will, then your spouse would be entitled to benefit from your estate under the laws of intestacy. There is little which can be done to mitigate this.
If you would like advice about any of the points raised in this blog, or if you would like to make a Will, then please contact me, Jessica Barnett on 01332 364436 or 01283 561531 or by e-mail at j.barnett@timms-law.com.