2023 could be the year of change for you, whether it be a new home, new job, marriage, divorce, or a new member of the family. Whatever it might be, are you aware of some of the different ways in which your Will could be affected?
New Home
If you have bought a new home, congratulations! Does your current Will include your previous home address? If so, please get in touch with your will writer to have your Will updated to ensure your new property is covered in your Will.
What if this is not done? If for example your current Will gifts a property to your son and this property does not exist at the date of your death, the gift will fail.
Marriage
Did you know that marriage automatically revokes a Will? If your intention is for all your assets to go to your new spouse this is fine but at times, if you have children from a past relationship that you want to provide for, they can be disinherited. This would have the effect that on your death, your children receive nothing, everything passes to your new spouse and then to their loved ones.
Of course, your children could challenge the will under the 1975 Inheritance (Provision for Family and Dependants) Act, but this is costly and time-consuming.
To prevent the above, it is best to review your existing Will before you get married and either re-write it or include a contemplation of marriage clause in it. This is where you express a contrary intention to the ‘automatic revocation’ of your Will upon getting married. Specifically, this clause is a declaration within your Will that your intended marriage to your potential future spouse shall not have the effect of revoking your Will.
Divorce
Whilst divorce does not automatically revoke your Will, the reality is that you probably will not want your ex-spouse to benefit from your Will or any part of your estate.
The good news is that the ex-spouse is treated as if they died when the divorce was finalised (decree absolute) and therefore cannot inherit from you. If there are any gifts to them in your Will, they will fail. However, if you did want your ex-spouse to benefit from your estate or receive something in your Will, you would need to have a provision in your will to state Section 18a Wills Act 1837 will not apply.
Did you know an ex-spouse can try and claim from your estate on your death if they feel as if they should “have been given a piece of the pie” and had reasonable financial provision made for them? The best way to get around this is to exclude them from your Will and have the letter of wishes set out the reasons for this exclusion so if it ever is challenged, the Courts can look at what you have stated and consider it when reaching their verdict.
Children
Your current Will may state “children” or alternatively specifically name your children.
If your Will states “children” this provides for any children that are living at the date of your death. However, if your current Will specifically names your children and you have had more children since, you will need to update your Will to include them also.
With marriage could come step-children so let’s take a look at this now. Apart from legislation relating to the residence nil rate band, did you know step-children are not included in the automatic definition of “children, issue or descendants” when it comes to your Will?
You may class them as your own children as you have looked after them for many years but even if this is the case, they will not benefit if your Will gives your estate to your children. Of course, they can challenge the Will on your death but to prevent costly and time-consuming litigation, if you wish for them to benefit under the terms of the Will, either specifically name them or have “children and step-children” written in the Will. Your estate planner will advise on this during your meeting.
Property Abroad
If you own a property abroad i.e. Dubai? We would advise you to have a Will in place in the country where the property is held. It is important to ensure the Will is restricted to assets in that country only.
Why is this? If you write a Will in 2019 and then see a will writer in Dubai in 2022 and this specific Will is not restricted to assets in Dubai only, your 2019 will be revoked.
If you wish to make amendments to your Will, have a new Will written or any supporting documentation, simply contact your Will Writer who will be able to assist with putting these changes in place or draft any new documentation for you. Remember, if you have a new Will written, it will revoke any previous Wills.
You can find a will writer who is a Member of The Society of Will Writers in your local area by searching our Find a Member page, or call our office on 01522 687 888.
5 comments
joh Gray
26th February 2023 at 1:58 pm
Hi All,
John Gray from Estate and Succession Planning in Scotland.
Under Scots Law, divorce will not automatically revoke a whole Will. It will remove the divorced spouse from any role in the document, including that of executor or beneficiary. It would be wise for the Will to be replaced to remove ambiguity though.
Also, If there is a survivorship in the property title deeds, on divorce, this would also b revoked
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Stpehn Reynolds
4th April 2023 at 11:15 am
Hi, my parents in their 80’s effected mirror wills which included a life interest trust to include their sole residential property. Prior to the drafting of their first current will in 2009, the status of the principal place of residence was uncencumbered save for 2 charging orders to secure sums pursuant to CCJS in respect of consumer credit related debt. Thankfully the charging orders are not subject to ongoing interest and my parents are paying a token monthly sum to reduce the debts due under the charging orders. At the time of the wills being executed, it was recommended that the joint tenancy on the property be severed. How does one check that this has been done? a copy of the title register doesnt state whether the property is held as Joint beneficial owners or tenants in common and how does one stamp such an arrangement, so that should parent A pass away and then parent B ends up needing local authority funded care, that the local authority is prevented from laying claim against parent A’s interest in the property which at that stage would be a life interest on trust for the benefit of parant a’s children for example ?
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Manisha Chauhan
2nd June 2023 at 10:44 am
Hello. To check that the title has been severed you would need to download the title register from the land registry and the following wording should appear…”No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.” If this wording does not appear then the property is held as joint tenants and your parents should contact a will writer who will be able to arrange this for them.
If parent A dies, the life interest will come into effect and their share of the property would pass to the trust and effectively be owned by the trust. If parent B then needs care then it would only be their share of the home that is counted as part of the means test assessment.
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Nicki Wheeler
7th December 2023 at 12:03 pm
Can I please clarify the statement regarding the gift of a property failing if the address has changed? I currently draft Wills stating the current address of the property to be gifted ‘or any other property that is my sole or main residence at the date of my death’.
I am hoping that this would avoid any failing of gifts of property?
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Manisha Chauhan
12th December 2023 at 11:27 am
Hi Nicki, yes including this additional wording would avoid any property gift from failing
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