Will Writing

Divorce and Unfinished Business

It’s a well-known fact that for whatever reason. The process of going through a divorce always scores high in the top ten lists of the most stressful life events one can experience.

In 2012 there where an estimated 128,000 divorces filed across England, Scotland and Wales.

After going through such a process imagine how you would feel, having initially felt satisfied that your affairs were once again in order. Only to realise that you could have missed one very important fact.

The fact I am referring to is this:-

“Divorce does not fully revoke or invalidate a Will”

Whilst it is true that marriage, remarriage or entering into a civil partnership does revoke a previously made Will, this does not work in reverse.

Divorce or dissolution of a civil partnership can affect your Will but does not revoke it. If you divorce or dissolve your civil partnership after your Will is made. Any reference to an ex-spouse or ex-civil partner will be treated as they had died on the day that the decree absolute or final dissolution order was made.

This usually has the effect of any gift then going back into your estate for the benefit of the remaining beneficiaries. However, if the entire estate was left to an ex-spouse or ex-civil partner. Then it would be treated as if you had died intestate.

If an ex-spouse or ex-civil partner, where appointed as an executor or trustee. The will still take effect as if they had died on the date the decree became absolute. If you had appointed them as trustee of a trust for the benefit of your children, or as a guardian, the trust fails. Therefore preventing your wishes from being carried out to their full extent.

It is, therefore, the best advice to make a new Will after your divorce. Especially if your ex-spouse or ex-civil partner was a named beneficiary.

However, because your will does not become invalid upon divorce. You can make a new Will at any time before the divorce is finalised. For example upon separation, so that these issues do not occur. It is not necessary to wait for the decree absolute to come through because the new Will by law revokes the previous one.

If the process of divorce is carried out by a solicitor then its highly likely that this situation would be addressed. Although don’t take this for granted and make sure you double check this is the case.

It is currently estimated that over the next twelve months that one in five divorcing couples will launch DIY proceedings online. In the case of DIY divorces more often than not reviewing the existing Will is an area that could have been overlooked. So it is important to review your will to ensure it is set to instruct your current wishes.