The Wills Act 1837 states that both marriage and divorce will impact the legal status of a will.
No – divorce does not cancel (known as ‘revoke’) a will. It simply removes those elements of a will where the ex-spouse is mentioned. So, this would include any:
- executor appointments
- cash legacy
- residuary estate
Technically therefore divorce could have the effect of cancelling the whole will, but only if it had no substitute provisions beyond the ex-spouse (that would be a very poorly drafted will if it did not have substitute provisions).
The impact of divorce on a will is therefore different to the impact marriage has – which is to cancel or revoke the will in its entirety. Divorce simply removes any mention of the then divorced spouse.
Can I stop divorce impacting my Will?
No, unlike marriage (for which you can make a will ‘in contemplation of marriage’), the impact of divorce is that it will remove the ex-spouse from any mention in a will and that’s that.
As above, a well drafted will should include substitute or ‘failing that’ provisions beyond a spouse so you may find that an existing will may remain OK? If you are going through divorce proceedings, we strongly recommend that you review the terms of your will and update as necessary.
What happens if my Will does not have any ‘failing that’ provisions?
If your will did not have any provisions beyond your spouse, then divorce will render you potentially ‘intestate’. The rules of intestacy would then apply as to who gets what on your passing. Those rules may not accord with your wishes – stressing again the importance of reviewing your will if you are going through a separation and divorce.
Do the same rules apply to Civil Partnerships?
Yes. The Wills Act 1837 (which sets out the law for how marriage and divorce impacts wills) was amended by the Civil Partnership Act 2004 to include civil partnerships in the same rules that had until then only applied to marriage/divorce.
Free Legal Guide
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