Divorce and your Will

Posted on
I am sure it's not on the list of most enjoyable things to do, but when is the right time to consider revisiting your Will? Perhaps after receiving an inheritance? Having children? Establishing a successful business? Or maybe the less than pleasant realisation that those knees are creaking a little more and it's difficult to find hairs on your head that are not white! All of these scenarios are very plausible examples of that remind you to review your Will, however, when it comes to divorce, often a difficult and traumatic time, the last thing a divorcee wishes to consider next is sorting out their end of life affairs. Nonetheless, it is important and may prevent unforeseen consequences further down the road.

If you do nothing…
After divorce, or dissolution of a civil partnership, unless your Will states to the contrary, it will take effect as if your spouse/partner had died before you. The effect is that any appointment of your former spouse/civil partner as guardian of your children, executors of your Will or any gift to them, will fail to take effect.

Areas to consider when redrafting your Will

  • Write a new Will – should you wish to change your Will, the best way to do this is to write a new Will (as opposed to making a codicil). This is because a codicil republishes the Will on the date of the codicil and could cause complications in the future. By way of example, a codicil made after divorce/civil partnership may unintentionally re-instate the appointment of a former spouse/partner if such an individual had been an executor under the previous Will.
  • Review Powers of Attorney – If you have appointed your former spouse/civil partner.
  • Look at how you own your matrimonial home – If you own it as joint tenants, your half of the property will automatically pass to the surviving owner on your death. You may wish to change the ownership of the matrimonial home to a tenancy in common so that your half can instead be bequeathed under your Will and have a Declaration of Trust drawn up setting out the ownership more clearly.  Individual advice regarding this is recommended.

You should review your Will whenever you feel the time is right.. However, it is better to receive professional advice early so that you have a full picture of the situation and can therefore make an informed decision about how you wish to proceed, including your Power of Attorney and house ownership.

If you are considering tying the knot for a second time, once again, your end of life affairs are likely to be given little head space; particularly in comparison to the photos, the flowers, the DJ, the food and the alcohol. However, once again, it is important to consider your Will.

Your Will is normally revoked on marriage/civil partnership unless it can be shown that at the time of the Will being made, you intended to marry or form a civil partnership and did not intend such marriage or civil partnership to revoke the Will. If this is the case, it is important to give the name of your intended spouse/partner in the Will and ensure it is clear that the Will should not be revoked by your marriage/civil partnership. If this is not the case and unless you write a new Will, you may find yourself without a Will following the happy day – not such a happy day after all!

How we can help
Having an accurate, up-to-date Will is important to ensure all your wishes are observed and to provide for those left when you go. If you have any questions about the issues raised here, please contact Blake Morgan's succession and tax team. We can guide you through any queries you may have about your current situation and assist you should you wish to draft a new Will. If you have any other questions relating to your divorce, Blake Morgan's Family team would be happy to offer a 50% discount to new clients for an initial consultation in relation to divorce proceedings.