Probate and Will, Trust & Estate Disputes

Publish date

18 September 2020

Divorcing – Why you should make a will

If you and your spouse decide to separate and/or commence divorce proceedings, it is always advisable to consider making a will. If you do not already have a will then, under the Intestacy Rules, your spouse is likely to be the main (and in a lot of cases the only) beneficiary of your estate.  Also, if you have made a will, then your spouse will continue to be entitled to anything that you have left him or her in your will until the decree absolute is granted in the divorce proceedings.

After the granting of the decree absolute, because the parties are no longer married, a spouse is no longer entitled to a share in the other spouse’s estate under the Intestacy Rules and any gifts in a will are treated as if the spouse has predeceased, so he or she does not inherit.

It is important to appreciate that in many cases, the decree absolute will not be applied for until financial matters have been resolved and one should therefore, give serious consideration to whether one still wants one’s spouse to inherit in the event of one’s death.  Many people choose to make a will immediately, leaving their estate to other relatives, including children or parents.

If you do make a will, then you must appreciate that some assets in joint names will not automatically pass in accordance with the terms of your will.  This includes in particular, property that is owned as joint tenants (a lot of married couples own homes and other property as joint tenants in law and in equity, as opposed to owning as tenants in common), and joint accounts.  These assets will pass under what is known as the doctrine of survivorship, so that if one joint owner dies, the other owner automatically inherits the whole property or all the proceeds of the bank account, even if there is a Will leaving all of the estate to someone else.

It is therefore, sensible to take legal advice if you are considering making a Will to ensure that any jointly owned assets are considered.  You must also appreciate that your spouse may become suspicious that you are making a new will because for example, if you wish to leave your share of property that you both own as joint tenants, you have to formally serve notice of severance of the joint tenancy on the other owner, your spouse.  Often the most likely response is for the other spouse to make a will disinheriting their spouse, so you do need to think carefully about who is likely to die first.

When making a will it is also important to consider when beneficiaries should inherit their share of the estate.  Traditionally, many people left their estate to children when they reached the age of 18 years, but increasingly it is felt that this is perhaps too young and that inheriting a large sum of money at a point when statistically it is unlikely one will have the responsibilities of a family or property ownership, is not necessarily a good thing.

Finally, if you are making a will, your lawyer should advise you to consider appointing trustees and guardians if you have children.  You will need to think about which powers you want the trustees to have to advance money for the children’s benefit, for example, to use for education or to purchase a car before they are entitled to receive their legacy.

With guardianship, it is important to appreciate that the appointment does not actually take effect unless both parents die and in some cases, it is sensible to also have a letter setting out your wishes, for example, who you would like the children to live with, in the event of your death.  Such documents are not actually binding because courts have the power to order what is best for the children, but it can be useful for a judge to know what a deceased parent had felt was best.

In conclusion, if you are separating or divorcing, it is sensible to make a Will and at the same time consider whether you need to update the nomination of beneficiaries, in respect of life assurance, pension and death in service benefits.

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