There's no doubt that divorce is a stressful experience – there can be child arrangements to agree and financial arrangements to sort out. However, amidst all of the life changes that come with divorce, it is important to ensure what will happen on your death as a result of divorce isn't overlooked.
If you had put a Will in place after your marriage (or before your marriage but in contemplation of your marriage), then whilst your Will remains valid after your divorce, section 18A of the Wills Act 1937 states that after divorcing your Will will take effect as if your former spouse had died on the date the decree absolute was issued. This could have unexpected and/or undesired consequences, so divorce should certainly trigger a review and update of your Will.
Section 18A Wills Act 1937 – Effect of dissolution or annulment of marriage on wills:
- Where, after a testator has made a Will, a court of civil
jurisdiction in England and Wales dissolves or annuls his marriage
or his marriage is dissolved or annulled, and the divorce or
annulment is entitled to recognition in England and Wales by virtue
of Part II of the Family Law Act 1986 –
- Provisions of the Will appointing executors or trustees or conferring a power of appointment, if they appoint or confer the power on the former spouse, shall take effect as if the former spouse had died on the date on which the marriage is dissolved or annulled; and
- Any property which, or an interest in which, is devised or bequeathed to the former spouse shall pass as if the former spouse had died on that date.
except in so far as a contrary intention appears by the Will.
Executors and Trustees
Executors are the persons named in your Will who are appointed to deal with the administration of your estate. In very basic terms, they are responsible for reporting your estate to HMRC and applying for the Grant of Probate. Executors also collect in the assets of your estate, settle any liabilities of your estate and distribute your estate to the beneficiaries.
Trustees are the persons named in your Will who are appointed to deal with the administration of any ongoing trusts created by your Will. Executors and trustees are usually the same people, but they do not have to be. Often it is necessary to have at least two trustees.
Therefore, if your former spouse was appointed as one of your (or your only) executor(s) and/trustee(s) then it is important that your Will is updated so that new persons of your choice can be appointed. This is particularly important if your former spouse was your only executor and/or trustee, as without any valid executors and/or trustees named in your Will, the law will determine who can then act in those roles.
Beneficiaries are the persons named in your Will who you wish to benefit from your estate. Usually Wills contain a "default" beneficiary clause setting out who should inherit in the event that the gifts to your main beneficiaries fail for any reason. Whilst, once you have divorced your former spouse, any gifts to them would "fail", you may still wish to update your Will to remove reference to them, and you should consider whether any "default" beneficiary clauses still reflect your wishes. You may also wish to consider incorporating a trust into your Will to protect your estate for your children (or others) in the future.
If, in fact, you do wish for your former spouse to continue to be a beneficiary of your Will then this intention needs to be stated in your Will. It will therefore be necessary to update your Will to make such intention clear.
Guardians are the persons appointed to take legal responsibility for your children following your death. This can be especially complex and emotive following a divorce. Generally speaking, the appointment of a guardian will only take effect if there is no surviving parent who has parental responsibility. However, this can also depend on the terms of any Child Arrangements Order in place at the time, so you should consider whether the guardians appointed in your Will need to be updated on divorce.
Claims against the estate
It is possible for certain categories of persons, including spouses and those financially dependent on you, to bring claims against an estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act). It is therefore possible for a spouse to bring a claim under the Act if, for example, you were to change your Will to remove your spouse and you were to die before the divorce was finalised. It is also possible for a former spouse whom you continue to financially maintain to bring a claim under the Act. Therefore, if you continue to financially support your former spouse, the Act should also be considered along with the terms of any Financial Order.
The impact of divorce goes beyond the immediate lifetime changes. It is important to review your Will in light of a divorce (or to put a Will in place if you did not already have one).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.