Is your Will fit for purpose?
Your Will is an extremely important document and if you’ve taken the time to write one then it’s equally important to take the time to ensure that it is kept up-to-date. We recommend that you review your Will every 5 years to make sure that it is still valid and reflects your wishes.
Your circumstances may change over time and these changes should be reflected in your Will. If not, then your Will may become invalid or benefit the wrong people.
Reviewing your Will is easy – you may not need to write a new Will. Our Will Writers can advise what will be best for you depending upon the change you wish to make.
Even if your Will was not written by Banner Jones Solicitors one of our experienced Will writers will still happily review it for you. We can arrange to see you at one of our offices in Chesterfield, Dronfield, Sheffield and Mansfield.
Why do you need to change your Will when you divorce?
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 appoint testamentary guardians. It also gives you a 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. You can find out about Intestacy Rules on our website - Intestacy | Banner Jones Solicitors in Sheffield, Chesterfield, Dronfield & Mansfield
The family home is very often kept by one of the spouses for the purpose of providing stability for any children. Where a property is owned by more than one person, it can be owned as “beneficial joint tenants” or as “beneficial tenants in common in shares”. On the death of one owner, property owned as joint tenants would pass automatically to the surviving co-owner. If the property is owned as beneficial tenants in common in equal shares, on the death of one owner, the share will pass in accordance with the terms of his or her Will.
To convert a joint tenancy to a tenancy in common in equal shares, you would sever the joint tenancy by the service of a notice then, 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 sever 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. If you have no Will, under the Intestacy Rules the surviving spouse would inherit if 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. We can prepare a unilateral notice of severance which is sent to your spouse. They do not need to agree to the severance. Once notified, an application is made to HM Land Registry to make the entries on the title to complete the severance. This will convert your ownership from joint tenants to tenants in common in equal shares
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 can advise you about making an application for first registration of the deeds to the Land Registry. The title can be updated at the same time. Alternatively, severance of the joint tenancy can be recorded on the actual deed.
Our team will be able to advise you about the options of severance.
Why write a Will with Banner Jones?
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.
One size does not fit all when it comes to Wills and it is important for you to choose the correct type of Will to suit your exact family circumstances. A trained legal professional, in addition to putting your instructions down on paper, checks that you have the mental capacity to make a Will, provides advice on things like Inheritance Tax, and discuss whether Trusts maybe required in the Will to protect vulnerable beneficiaries.
Our Will Writers know exactly how to word the wishes in your Will, helping to avoid any ambiguity. Small differences in the wording of gifts, for example, can produce quite different results. We have seen so many examples of DIY Wills where the wording is unclear and legally uncertain. Any ambiguity in the wording can mean that the gift may actually fail and that the Will is open for challenge, with the outcome often going against your initial wishes.
What extra steps will Banner Jones take when helping you with your Will?
When you write a Will with Banner Jones Solicitors, we will check the title of the property for you, advise about severance of the joint tenancy, prepare the appropriate notice and update the land registry entries at the same time as we 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 specific 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.
Speak to our experts today
If you’d like to speak to our Wills, Trusts and Estates team about your Will then please ask your Banner Jones Family solicitor to make a referral or email firstname.lastname@example.org