If you are in the process of a divorce, then you should be aware of the effect that this will have on your Will, and consider making a new Will to avoid any undesirable results. Contrary to popular belief, your Will will not be revoked in its entirety when you divorce, only those clauses dealing with your soon to be ex-spouse or civil partner will be affected. Upon the divorce taking effect, your Will is treated as if your former spouse or civil partner had died before you, and any gift to that person shall pass according to any substitute provision that you have made. If you have not named a substitute beneficiary, then the laws of intestacy may dictate who will inherit from your estate.
It is important to consider how you own any property or jointly owned bank accounts. If you own property together as ‘joint tenants’, then regardless of the terms of your Will, upon your death your interest will pass automatically to the surviving joint tenant. To avoid your ex-spouse or civil partner inheriting your interest in the property it may be advisable to ‘sever’ the joint tenancy, which will convert your beneficial interest into a ‘tenancy in common’. If you were then to die before your divorce was finalised, your interest would pass in accordance with the terms of any newly updated Will, and not automatically to your partner.
If you have any children under the age of 18, then you should ensure that your new Will deals with the appointment of a guardian should both parents die. It is important to take legal advice over the appointment of a guardian and, subject to any order agreed in the family court, to avoid any difficulties you should both coordinate your guardianship appointments, either appointing the same guardian or specifying that the appointment does not come into being until the death of the second parent.
If you have children from a previous relationship and you re-marry, you will want to ensure that those children receive their inheritance. If you leave your estate to your new partner, upon their death your children may not be entitled to receive anything, regardless of any agreement that you made with your new partner during your lifetime. You must therefore make sure that your Will is structured to avoid it passing to unintended beneficiaries. One option would be to use a life interest trust in your Will. This would make provision for your current partner while they are alive, but ultimately protects your assets for your children when your partner later dies or remarries.
You should consider reviewing and updating your Will as soon as possible. Our Inheritance Protection team can help you with this process. They can also help you review your Will in light of any changes to the law or inheritance tax that might affect it. To find out more about updating or changing your Will, please contact one of our team below.