Writing Wills during a marriage that leaves everything to each other upon death is very common, but what happens to that Will should you decide to end the marriage and get divorced?
The legal bit…Section 18A of the Wills Act 1837 as amended by the Law Reform (Succession) Act 1995 s3(1) provides that where a person makes a Will and subsequently divorces, has their marriage annulled or dissolves their civil partnership, then their former spouse or civil partner is deemed for the purpose of the Will to have died on the date of which the Final Order was issued.
So, if the Will is revoked by the divorce, why bother changing it?
Your consideration now is what would happen to your estate should anything happen to you before the divorce is finalised. The timescale for the new no-fault divorce is now a minimum of 6 months, and unfortunately, we have seen tragic cases where a spouse has been killed or diagnosed with a terminal illness before the divorce revoked the Will. If your current Will makes gifts to your spouse or appoints them to act as your Executor, we would strongly recommend you to review your Will and make a new one if you do not want your spouse to inherit your estate. If you have children, you may wish to amend your Will to ensure they inherit everything rather than your spouse and also appoint testamentary guardians. It also gives you chance to appoint new executors. Alternatively, if you have not made a Will, this is a good opportunity for you to do so to prevent your spouse inheriting under the rules of Intestacy.
The family home is very often kept by one of the spouses for the purpose of providing stability for any children. In these circumstances, we would advise that you to sever the joint tenancy of the family home, so that instead of you and your spouse owning 100% of the equity together as joint tenants, you will each own a defined 50% share as tenants in common. This means that, if you die before your spouse, your share in the property will pass according to the terms of your Will, for example to your children. If you severe the tenancy it is therefore also important that you have an up to date Will that reflects who you would like to inherit your 50% share. Under the Intestacy Rules the surviving spouse would inherit if you die without a Will and the Divorce has not been finalised.
Severing the tenancy can be done as part of the Banner Jones Will writing process, or your divorce solicitor can prepare a Notice of Severance for you to sign and return. If you have concerns that your spouse would not sign the notice of severance, we can prepare a unilateral notice of severance which can be sent to your spouse notifying them of the severance. This can then be submitted to HM Land Registry to complete the severance of tenancy from joint tenants to tenants in common.
Unilateral notices of severance are good where one party does not agree/want to sign or does not have the capacity to consent. Provided they are served they are effective, and we would usually recommend sending them by recorded delivery, which we can do on your behalf. We would also then update the title for you if it is registered with the Land Registry. If the title is unregistered then we would advise that you do a first registration to register the property and update the title at the same time, or we would write the appropriate wording on the actual deed to show the title has been severed.
We would recommend that you do this to prevent your share passing by survivorship to your spouse/ex-spouse and instead passes under the terms of your Will to your chosen beneficiaries.
When you write a Will with Banner Jones Solicitors, we will check the title of the property for you and sever the joint tenancy, update the land registry as appropriate and prepare your new Will. Your draft Will can include testamentary guardians outlining who you wish to look after your children, and we can provide a side letter of wishes template for you to complete if you have additional particular wishes. We can also do a side letter of wishes explaining why you are no longer including your spouse/ex-spouse in the Will, which assists in protecting the validity of your Will in the event of a challenge.
Estate planning can be complex at the best of times, but a divorce can change everything. It is therefore important to seek the advice of an experienced divorce solicitor. At Banner Jones we work alongside our Will Writing and Estate Planning team to ensure you get the best advice and outcome.