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Divorce – perhaps not as final as you think, especially where Wills are concerned.

Reasons to choose Wilson Browne

According to the latest figures from the Office of National Statistics (released 29 November 2019), 42% of marriages end in divorce.

Historically the single biggest increase in enquiries about divorce are seen in January following the holiday period, but with the current COVID-19 pandemic, relationships are suffering an enormous strain.

When you get married or enter into a Civil Partnership.

Unless you have made provision, the effect of marriage or civil partnership will normally revoke your will.

What happens on divorce?

Your will is not automatically revoked on the dissolution of your marriage or civil partnership. However it does, unless an intention has been expressed to the contrary, take effect as if your spouse or civil partner had predeceased you.

What this means is that any appointments to your spouse/partner, or any gifts, will be treated as if your spouse/partner had died on the date that your marriage or civil partnership ended and they would not be provided for.

Your former spouse or partner would be eligible to challenge this under the Inheritance (Provision for Family and Dependants) Act 1975 and can make an application in this regard for provision from your estate. Research published in The Gazette last year suggested that 1 in 4 people would consider challenging a will if unhappy with the division of an estate. This supports recent figures published by the Ministry of Justice which show an increase in contentious probate cases heard in the High Court during 2019.

You are able to ‘amend’ your will by creating a document called a ‘codicil’ but this should be approached with caution, as execution of a codicil can have the effect of republishing your earlier Will, but on the date of the codicil. This could be problematic if you overlook something in your codicil which could give effect to some provisions in your earlier will pre-dissolution of your marriage or civil partnership.

It is always advisable to review your will as soon as possible on a breakdown of a marriage or civil partnership, particularly after dissolution of your marriage or civil partnership to ensure certainty.

The drafting of wills is an unregulated area if instructing a will writer as opposed to a solicitor (who must keep their knowledge and training up to date; is regulated by the SRA; and must be indemnified [insured, for lack of a better term] in case there is an issue/problem later) and it is therefore always advisable to seek legal advice. Wills that have been improperly drafted tend to be more susceptible to legal challenge and this can prove stressful and expensive for loved ones at an already difficult time.

If you need any further advice, contact our specialist team.

Olivia Banks

Posted:

Olivia Banks

Trainee Solicitor

Olivia is a trainee Solicitor in the Private Client team based in our Northampton office.