Divorce and Wills
In recent years there has been a significant increase in the number of people who have successfully managed to claim on a deceased estate. At Benson Williams, we’re here to cover all sorts of different scenarios, including Divorce and Wills.
Many people make a Will following a divorce. The main worry they will have is whether their ex-husband or ex-wife can contest their Will or claim on their estate. Many people have already made a Will and subsequently, get divorced, and will worry where that leaves them in regards to their ex-husband or ex-wife. People also might make a Will whilst in a second marriage or second long term relationship, and it may also be the case that their spouse or partner is themselves a divorcee. This can mean that there are children and also stepchildren to consider. It can often be the case that people have become estranged from other family members, such as children, for any number of behavioral or lifestyle reasons.
Does Divorce invalidate a will in the UK?
Clearly divorce and Wills, or Wills where there are obvious splits within a family, can be a very complex area. People may not fully understand whether or not a previous Will is revoked. People may not be sure to what extent a previous Will is still fit for purpose. An out of date Will can often be as dangerous as no Will at all!. People may be concerned that, even with a Will, unwanted claimants could have a claim on their estate. Making a Will after a divorce or separation, or in circumstances where a family are divided, requires a great level of planning and preparation.
A large part of the advice which we give where divorce or family divisions are the main concern hinges on a piece of legislation. This is called The Inheritance (Provision for Family and Dependants) Act 1975. This legislation gives certain categories of people a statutory right to claim on your estate if you have disinherited them or if your Will makes inadequate provision for them.
The implications of this legislation could be particularly important if you fall into any of the following categories:
- People in second marriages.
- Unmarried couples.
- People with different children from different relationships.
- People with children who may have problems of their own (bankruptcy, addictions etc).
Ask us about The Inheritance (Provision for family and dependants) Act 1975
Be ready to ask us what The Inheritance (Provision for Family and Dependants) Act 1975 is, and how it may affect you. We will go through it’s specific relevance to you, based on your own individual circumstances, before completing your Will. Whilst the right to claim under this legislation is statutory, this doesn’t automatically mean that the claimant will be successful in their claim. Ensuring that unwanted claimants on your estate are unsuccessful has been a fundamental part of our service over the years. A small amount of time and expense now could save a lot of time, expense, and disappointment for your loved ones when it is too late.
Here are a few tips to bear in mind when creating a Will that involves a Divorce:
Be clear who you want to exclude from your Will, and be ready to discuss in detail the motives for doing this with us. We will have a number of key questions for you. For example is an ex spouse still financially dependant on you?. Has an ex spouse remarried to your knowledge since your relationship ended?. Do you still own assets jointly? Are you actually divorced, or just separated?. Are you at decree nisi or decree absolute stage?. It is also a good idea to have details ready of any existing financial obligations you may have to others (such as Child Support Agency or other maintenance payments).
Also, clear who you do need to protect or wish to prioritise in your Will. This may be a partner who is not actually your next of kin, a second spouse, or children (particularly whilst they are under the age of eighteen). Alternatively, it could be a charity close to your heart, or non family members who you are close to. Again be ready to fully discuss the motives for these decisions.
When a person does choose to claim on an estate, invariably the first course of action is to instruct their lawyers to obtain a “Larke v Nugus” statement from us. We would then be required to honour that request. In simple terms this means we would have to forward to them a complete copy of our Will file. Together with answers to a list of specific questions pertaining to the circumstances under which the Will was made. At this stage the more evidence we have concerning why a claimant has been excluded, alongside evidence of why the chosen beneficiaries have been included, the greater the likelihood that we can negate the claim.
The worst thing you can do is brush unwanted claimants aside by not mentioning them to us. With the full facts we can make your Will and build your defence of that Will. As already stated, a small amount of time and expense now can save your family a lot of time, expense, and disappointment when it is too late when divorce and wills are concerned.
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