A Multitude of people do not realise the affects of getting married or divorced in terms of a persons estate (a persons estate represents their net worth, that is all the money and property that the person owned, which is passed to their heirs or beneficiaries) specifically, whether you die with a Will or intestate (without a Will).This article aims to highlight and explore the ways in which a marriage or divorce can affect the ‘Terms of your Will’.
Marriage
A common delusion is that getting married has no repercussion on an individual’s Will, however this is not the case.
In essence, marriage revokes your Will, unless your Will contains an ‘in contemplation of marriage’ or ‘in contemplation of civil partnership’ clause within it.
This can be a concern where someone has remarried and has children from their first marriage that should benefit under the terms of the Will. If the current Will does not carry an ‘in contemplation of marriage’ clause it will be revoked and therefore invalid. This means the deceased’s assets will pass in accordance with the laws of intestacy.
Example
Joshua makes a Will in 2020. Two years later he meets Fiona, they decide to have an expensive and luxurious wedding on a beach in Barbados. Joshua fails to make a new Will after he marries Fiona and unfortunately he dies soon after from an underlying health condition.
This means that Joshua has died intestate and his assets will pass in accordance with the laws of intestacy. In this case it may conclude well for him if his estate was worth less than £270,000 and he wanted it all to pass to Fiona but what if he wanted to pass some of his estate to her and some to his parents?
If Joshua had made a Will after he got married then his estate would pass in accordance with the terms of his Will.
‘Contemplation of Marriage or Civil Partnership’
Earlier in the article it was mentioned that marriage revokes a Will unless the existing Will contains an ‘in contemplation of marriage’ or ‘in – contemplation of civil partnership’ clause in there.
If the ‘Testator’ (One who makes or has made a Will, one who dies leaving a Will) expects to be married to a certain person at the time the Will is signed, when they do marry, the Will shall not be revoked. The clause will need to include the name of the person the ‘Testator’ expects to marry. If they marry someone else, the Will will be invalid.
Two conditions need to be met in order for this clause to be successful. Firstly, the ‘Testator’ must expect to be married or form a civil partnership with the said person at the time the Will is signed. It cannot be included where the ‘Testator’ believes they will marry this person at some point in the future.
Secondly, it must be clear from the Will that the ‘Testator’ predetermined that the Will should not be renounced by the marriage or creation of a civil partnership.
A pertinent question that often arises; what if the current Will contains an ‘in contemplation of marriage’ clause and the couple go on to have a ‘Civil Partnership’?
If the current Wills include an ‘in contemplation of marriage’ clause and the couple enter into a civil partnership, their current Wills will be revoked.
Divorce
When a couple initiate divorce proceedings, they may decide to amend their Wills only once the ‘Decree Absolute’ has been acknowledged (the document which means you are legally divorced).
Until the ‘Decree Absolute’ is issued, you are still graded as legally married to one another, which means the spouse can still benefit in accordance with your Will even if it is not amended, and most people would want to avoid this.
Where a couple have commenced divorce proceedings or even preceding to this, good advice is for them to re-work their Wills immediately. No-one can know how long their life span is and therefore if the spouse was to die before the ‘Decree Absolute’ was issued, either with a Will citing spouse as the ‘First Level Residuary Beneficiary’ or alternatively ‘Die Intestate’, their estate will pass to the spouse which is not what they would have wished to happen.
It is also prudent to split the tenancy on any ‘Jointly owned property’ held to prevent it passing automatically to the separated spouse. This will enable each spouse to gift their share of the home as they wish, rather than it passing by survivorship.
Where the Will is re-written during divorce proceedings or even where you separate and do not want the other spouse to benefit from your estate, good advice would be to create an ‘Exclusion Clause’ in the Will, specifically excluding husband/wife, partner/partner, and stating this is not an oversight so the intention is absolutely clear. A ‘Letter of wishes’ should be drawn up detailing the reasons for the exclusion in the event the Will is ever contested by the ex-spouse as this is what the Courts will seek to rely on. There is always a risk the ex-spouse could invoke a claim against your estate on the basis they have not received reasonable and adequate financial provision.
Once your divorce has been finalised and a ‘Decree Absolute’ issued, the Will treats the ex-spouse as having ‘Pre-deceased’ you. This means if your current Will lists your spouse to receive your estate on your death, this gift will effectively fail. The same would apply to any appointments of the ex-spouse as ‘Trustee’, ‘Executor’ or ‘Guardian’.
What if I want my ex-spouse to benefit from my Will?
There are scenarios where the marriage may have ended on good terms and they still wish to benefit one another on their death or for the ex-spouse to continue acting as the ‘Executor’ and ‘Trustee’. Once the divorce is finalised, the ex-spouse is treated as having as ‘Predeceased’ you.
If the intention is for the ex-spouse to benefit from the Will once the divorce is finalised, the following clause would need to be included in the Will.
“Section 18A of the Wills Act 1837 as amended by the Law Reform (Succession) Act 1995 (or any modification or re-enactment) shall not apply to my Will.”
Taking Instructions from a Married Couple – Suggestions for Will Writers
A couple may approach you requesting ‘Mirror Wills’. After assessing they have the requisite capacity to make a Will, you can ask them whether they would like to give their instructions in the presence of one another or separately.
Ensure there are no concerns of ‘Undue Influence’ during the meeting (influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences) or there is no pressure being applied by one party to the other as to what their Will should state or who will receive those gifts. If there is, it is wise to halt the meeting and consult with each of the clients separately.
If they are happy to provide their instructions in the presence of one another, it is advised that at the end of the meeting, you see each of them separately and go through their wishes and confirm this is exactly what they require – it is surprising how many people abruptly mention a child from someone else or even a property their partner or spouse knows nothing about.
And of course it goes without saying but you owe a ‘Duty of Confidentiality’ to each of your clients and therefore should not discuss the terms of client A’s Will with client B’s Will, unless Client A has provided you with written permission to do so.
When it comes to sending a ‘Draft copy’ of the Will, apply ‘Sensible protocols’. If the Wills are the same, you can send them together. If you have an instance where Client A has told you of a secret ‘Buy to let property’ they have with their sister, send the Wills separately.
It is essential that detailed notes are taken during the meeting in case of anomalies at a later date, such as misinterpretation or perceived irregularity by one or both of the clients regarding aspects pertained in the agreed Wills.
If you would like any further advice, please do not hesitate to contact us:
3C Legal Limited
Fax: +44 (0) 1684 294865
Mobile +44 (0) 7707 644738
info@3clegal.co.uk