The effect of divorce or dissolution on your Will.
Many of you will already be aware that marriage revokes a Will unless it is clear that you were making it in contemplation of marriage. Did you know that divorce or the dissolution of a civil partnership also has an effect on your Will?
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 testator’s Will to have died on the date that the marriage or civil partnership ended. This is the date on which the decree absolute or decree of dissolution was issued.
The consequence of this is that if the former spouse or civil partner has been appointed an executor or trustee under the Will then the appointment will not take effect. Similarly, if the former spouse or civil partner were to receive any benefit under the Will then this gift would fail and any substitute gift provisions would apply. If the former spouse was the only beneficiary and there were no substitute provisions then the estate would be distributed in accordance with the rules of intestacy. This may not be how you would like your estate to be distributed.
It is important to remember that if you are currently separated and going through divorce or dissolution, but the decree absolute or decree of dissolution has not yet been issued then Section 18A will not prevent any appointments to your spouse or civil partner taking effect. For this reason you should consider amending your Will even before the divorce or dissolution is completed.
Finally, it is also possible to exclude the operation of Section 18A by including an express declaration within your Will. For example ‘Section 18A of the Wills Act 1837 as amended by the Law Reform (Succession) Act 1955 s3(1) shall not apply to my Will.’ This would be appropriate in circumstances where the Will is being prepared in contemplation of the divorce or dissolution.
This is how divorce can affect your Will.