I have recently read a STEP article about marriage revoking Wills (I'm getting re-married, will my children still inherit? STEP Advising Families), and it got me thinking about other weird and wonderful laws that might impact your future plans in ways you might not have expected.
*Please note that this blog does not explore the intestacy position or Scottish law.
1. Marriage (this includes civil partnership too)
If you have not written your Will in contemplation of marriage/civil partnership, it will be automatically revoked in the event that you marry after the date of it.
The reason for this is that it is presumed you would want your new spouse to inherit all of your assets on your death – after all, you are marrying this parson! Whilst this can be the case of course, the make-up of many families in the UK quite often means that you do not want your marriage to affect the terms of a Will you wrote before it. Often, marriages bring together two families and two sets of finances, which are not necessarily merged together on marriage, so that each person entering the marriage still wishes to provide for their ‘own’ family.
The effects of a revoked Will can be devastating, resulting in the original beneficiaries of the first spouse to pass away left with nothing at first glance. Your loved ones would not inherit your estate, and instead it would pass to your new spouse, which ultimately, would pass on to their own loved ones.
There are ways for your loved ones to make a claim against an estate of course, but this is a costly and time-consuming process, causing more distress in an already distressing situation.
The best course of action is to review your existing Will before the date of your marriage, and either re-write it or revive it in contemplation of marriage. If you wait until after the date of your marriage, it has already been revoked.
2. Divorce
Conversely, divorce does not automatically revoke your Will, which seems completely nonsensical, but the reality of divorce is that whilst you most probably wish to exclude your ex-spouse from your Will, you may not wish to automatically exclude other beneficiaries you may have mentioned in it.
The effect of divorce is that your ex-spouse is treated as if they were removed from your Will but the other provisions you have made do not fail. The reason for this is that it is likely your other provisions are still relevant.
The different stages of divorce also make a difference – only when you have received your decree absolute is your spouse removed from your Will. If you had written a Will bequeathing your estate to your ex-spouse but your death occurs either before or after you receive your decree nisi (but not yet received your decree absolute), your ex-spouse remains a valid executor and beneficiary of your Will, which can create chaos.
Even if you have made it all the way to a decree absolute, your Will could be left in a bit of a mess. You may have appointed your ex-spouse as your sole executor, not making provision for a back-up, the division of your estate may no longer be a true reflection of your current circumstances, or your choice of guardians for young children may not now be relevant.
Of course, even if the remaining provisions of your Will are still relevant, any existing executor/beneficiaries would still need to provide documentary evidence of your divorce in order to proceed on the basis that your ex-spouse is removed, which will very likely delay the progress they can make in the early stages after your death, especially if the divorce takes place many years before your death and your copy of your decree absolute is lost along the way.
Again, there are ways for your loved ones to make a claim against an estate of course, but this is a costly and time-consuming process, causing more distress in an already distressing situation.
The best course of action is to rewrite your Will in the very early stages of any divorce. Relying on waiting until decree absolute stage is quite potentially a risky strategy.
3.Step-children
Except in the legislation relating to the Residence Nil Rate Band, step-children are not automatically included in the legal definitions of ‘children’, ‘issue’ or ‘descendants’ in relation to Will writing.
The reason for this is that children and step-children are often distinct relationships.
In your set of circumstances, however, you may have treated your step-child as your own child for many years, and forgotten the fact that they were even your step-child when you wrote your Will bequeathing your estate to your ‘children’. Your lawyer may not have directly asked you, and you may have overlooked the fact – an easy mistake, but one which could have devastating consequences, resulting in your step-children being excluded from your Will.
Again, there are ways for your loved step-children to make a claim against an estate of course, but this is a costly and time-consuming process, causing more distress in an already distressing situation.
The best course of action is to name any beneficiaries you wish to include in your Will directly – this provides clarity for you, the lawyer and the beneficiaries of your estate, reducing room for error or misinterpretation.
If you would like to discuss your current circumstances or plan for the future, please contact our Wills, Trusts and Probate team on 01788 557722 or email sarahhorton@brethertons.co.uk and we can make sure that your loved ones are protected.