Legal advice on divorce and its effect on an existing will

8th March 2015 by

 

If you are seeking legal advice on divorce it is important to remember that the dissolution of a marriage or civil partnership is likely have an effect on any existing will, and where there is no will divorcing parties should each consider drawing one up.

Death after divorce or separation
Although experiencing relationship breakdown may be difficult enough it is important that a family law solicitor and their client discuss what would happen to property and assets should the client die either prior or subsequent to a decree absolute being granted.

If death should occur before the divorce is granted any existing will might possibly contain provision for the partner or spouse to receive benefit from the client’s estate, particularly with regard to jointly owned property and major assets, and this may not be what the client wants once divorce proceedings have been initiated. In this instance, a will should be altered or a new will drafted.

Effect of divorce on an existing will
The granting of a divorce or civil partnership dissolution will automatically affect any existing will or entitlement on intestacy (death without a will having been made).

Section 18A of the Wills Act 1937 and amended by s.3, Law Reform (Succession) Act 1995 states that when a decree absolute is granted the following effects on the will of either spouse will occur:

    •  Any appointment in the will of the testator’s former spouse as executor or as executor and trustee of the will is ignored.

 

  •  Any devise or bequest to the former spouse automatically lapses.

Any property which would have passed to the former spouse will, after a divorce, become part of the residue (any assets left after all specific gifts and bequests are made). In such a case where the client has specified that the residue will go to a specific party, this may need to be altered since a divorce is likely to greatly increase the value of the residue and this may no longer be an appropriate gift.

Inheritance disputes after divorce
Where a party has made a will or altered an existing one on divorce it is important to remember that the former spouse may still be able to secure a share of the estate by applying under the Inheritance (Provision for Family and Dependants) Act 1975.

Applications under the Act can be made on the ground that the provision for the former spouse made under a new or altered will or under the intestacy rules (or a combination of both) is not sufficient to adequately provide for the divorced spouse and/or any dependants.

Healys family lawyers in Brighton and London for expert legal advice on divorce
There are many aspects to consider when applying for or defending an application for ancillary relief, but the contents of any existing will should be carefully examined so that the granting of a divorce does not conflict with your wishes for how you desire your estate to be handled upon your death.

The family lawyers at Healys in Brighton and London have many years’ experience in counselling clients on all matter of financial considerations on divorce and will be happy to advise on the implications of any existing will you may have.

For expert yet sensitive legal advice on divorce and its implications for your last will and testament please contact our team. In our Brighton office you can speak directly to Catherine Taylor on 01273 669 124 or e-mail on catherine.taylor@healys.com

Or you may wish to call our London office on 020 7822 4000 or email London@healys.com