A person’s Will should give a clear indication of how they wish their possessions and assets to be divided upon their death. In an ideal world, once a Will has been drafted, the matter would be considered closed, but this just simply isn’t the case, as many have found to their detriment.
The recent example of Dawn Webb showcases just how severe the consequences can be for your loved ones if you fail to update a Will in the event that your personal circumstances change.
In this case, Dawn’s Will was revoked on her marriage to her partner, without her realising that would occur, leaving her children with a nominal sum, and her new husband with the lion’s share of estate. This is because marriage renders a previous Will invalid, meaning that an estate will be distributed as per the rules of intestacy, rather than by the instructions left in her Will.
But why does this happen, and what can be done to prevent remarriage or divorce from scuppering your final wishes?
How does marriage affect a Will?
Any legally binding Will you previously drafted in England and Wales is immediately nullified when you are married, unless it expressly mentions your intended union. The same rule applies to civil partnerships.
This means that if you don’t execute a Will before getting married which is made in contemplation of your marriage or a new Will after getting married, the law will dictate who will inherit when you pass away. When you pass away without leaving a Will, you are said to have died “intestate,” and you have no control over how your estate is distributed.
According to the current intestacy laws, the spouse is initially entitled to the entirety of the residual estate in cases where there is a surviving spouse but no children. When there is a surviving spouse and children, the spouse is entitled to the deceased person’s “personal chattels” (movable property, but not money) and a statutory legacy (currently £270,000 as per The Administration of Estates Act 1925 (Fixed Net Sum) Order 2020), plus interest going back to the date of death. The remaining estate, if any, is then equally divided between the children (50%) and the spouse (50%).
It’s crucial to remember that the laws of intestacy only recognise children who are biological or adopted. Under these guidelines, step-children and foster children are not recognised. The only way your step-children or foster children can inherit from you is if you prepare a Will and appoint them as beneficiaries.
How can you ensure your Will remains valid after marriage?
A Will can only continue to be valid after marriage if it was created “in contemplation of marriage.” It will be necessary to provide specific information about the individual you intend to marry, and cannot be purely speculative. The mere possibility of a future marriage without specific information about the person you intend to wed won’t stop your will from being revoked on marriage.
If you choose to do this, it’s crucial to state your intentions explicitly, such as “This Will shall not be revoked if the proposed marriage to my desired wife/husband [NAME] occurs.”
The alternative is to update your Will after the marriage has taken place, although in doing so, you risk being left without a valid Will for a period of time whilst the matter is handled.
Does divorce invalidate a Will?
While your Will may not be completely invalid should you divorce, your ex-spouse’s role in it will be significantly altered. The law will treat them as if they predeceased you, and as such, they will be unable to receive any benefits as a beneficiary or serve as an executor or trustee.
Divorce is not always acrimonious, and often individuals will still want to provide for their ex-partner, but a Will would need to be effectively updated to reflect this.
How does remarriage affect your Will?
If you’re considering remarrying after a previous divorce, it’s important to understand that your Will becomes invalid as soon as the marriage occurs.
Remarriage can also lead to unintentional disinheritance of your children from previous relationships. Your new spouse will likely become the primary beneficiary under the laws of intestacy, potentially leaving your children from previous relationships with nothing. The only solution is to ensure that any existing Will is updated to reflect your change in circumstances.
Challenging a Will
You can’t dispute an intestacy in the same manner that you can contest a Will, such as for instance a challenge on capacity, but you can file a claim under the Inheritance (Provision for Family and Dependants) Act if your loved one passed away and you believe they would have intended to leave you an inheritance.
For instance, if you were their unmarried spouse, unadopted step-child, or otherwise financially dependent upon them, you could file a claim. After probate is granted, you have six months to submit your application.
If the beneficiaries who are entitled to a share of the estate agree to a different split of the estate, you can inherit even though the intestacy laws do not apply to you. In this situation, the beneficiaries of the estate may request a deed of variation or a deed of family arrangement to modify the way the estate is divided to include additional parties, such as step-children who weren’t adopted or a common-law partner. You have two years post-death to take such action.
Either option can be costly, time-consuming, and extremely stressful – certainly more so than the actual act of creating or amending a Will in the first place.
The assumption that having made a Will previously ensures that your wishes will be enacted upon your death does not guarantee that those who should inherit, actually will.
Whilst no legal professional can guarantee that a Will won’t be challenged upon death, having a well-constructed Will that accurately depicts your current circumstances should minimise the likelihood of any such contest, and protect the best interests of your loved ones in the future.
Should you need any advice regarding Will creation, the amendment of existing documents, or the viability of any potential claim, please contact our dedicated team for impartial, confidential support and advice.
