It is predicted that 2022 will see the most weddings since the mid 1980s. With that in mind, if you are considering getting married or forming a civil partnership or have recently done so, it is important to review the contents of your current Will, or consider making a Will if you do not currently have one. In her article, Associate solicitor, Rachel Mock answers some questions raised on Marriage and Wills.
We regularly receive many queries from clients around the effect of marriage, the formation of a civil partnership, divorce and the dissolution of a civil partnership on a Will, the most common of which are considered below:
What happens to a will made before marriage?
You may have an existing Will, however unless it was carefully drafted with a future wedding or civil partnership to a particular person in mind, a subsequent marriage or formation of a civil partnership will revoke the Will regardless of whether that was your intention or not. Revocation of a Will means that the Will is no longer valid and if you subsequently die without having made a new Will, you will die intestate which means your estate will be administered according to the Intestacy Rules rather than according to your wishes.
Do you need to make a new Will?
If you are likely to get married or form a civil partnership or have recently done so and your current Will does not make reference to this, you should make a new Will.
A will can be drafted in expectation of marriage or the creation of a civil partnership with a particular person such that the subsequent marriage or civil partnership does not then revoke the Will.
Contrary to popular belief, you do not need to have booked your wedding or set a date, you just need to have the intention to marry or form a civil partnership with a particular person!
As there is a lot of admin surrounding a wedding or civil partnership and as many couples opt to take a honeymoon immediately after, it is wise to have your Wills in place in advance, not least because it offers peace of mind.
If you are not in a position to make your new Will prior to marriage or formation of a civil partnership, you should consider doing so as soon as you are able to afterwards.
Should I revisit my Will again in the future?
We advise that you consider the contents of your Will every couple of years and especially when there has been a change in your personal circumstances to ensure that it still accords with your wishes.
What is the effect of Divorce or dissolution of a civil partnership on a Will?
Unlike marriage or the formation of a civil partnership, divorce or dissolution of a civil partnership does not automatically revoke a Will. The effect of divorce or dissolution is that any reference to your spouse within your Will is treated as if your spouse had died on the date that your divorce or dissolution became final.
If you had appointed your spouse as an Executor, the effect of the divorce or dissolution is that they will not be able to take up that role. Provided you had also appointed joint or ‘replacement’ executors, those people will be able to act as your Executors.
If you had left a legacy, for example a particular sum of money to your spouse, the effect would be that this gift fails and the sum falls into your residuary estate and will distributed to your residuary beneficiaries.
If however, you left the entirety of your residuary estate to your spouse with no provision as to what should happen in the event that your spouse should die before you, your estate will be treated as if you had died intestate and will be administered according to the Intestacy Rules.
As divorce or dissolution does not revoke a Will, we strongly advise that where your spouse is named in any capacity within your Will which no longer accords with your wishes, you create a new Will as soon as you are able to, prior to any divorce or dissolution being finalised.
If, for example, a wife left everything to her husband and subsequently died after separating from him but prior to their divorce being finalised not having updated her Will, her estate would still pass to her husband as per the terms of her Will. This would be the case even though they were separated and it was no longer her wish for her husband to receive anything from her estate.
What should your approach to Will writing be if you never intend on getting married?
You may not wish to get married or form a civil partnership however you should still consider making a Will. In doing so, you can ensure that your estate passes on your death as per your wishes and not according to the Intestacy Rules which may not accord with what you want to happen.
For example, two people may have been in a long term relationship for several decades. It may be the intention that on the death of the first partner to die that their estate should pass to the survivor. If the deceased did not outline their wishes in a valid Will, then their estate will pass according to the Intestacy Rules and the surviving partner will not inherit from their estate as they were not legally married or in a civil partnership.
You should still make a Will to ensure that on your death your estate passes to your intended beneficiaries. Many people struggle where they do not have a partner or family members who they would like to inherit from their estate and delay making a Will as they do not know who to leave things to. In this situation you may wish to leave your estate to one or more charities.
The above are just some examples of the many reasons why your Will should be a carefully considered document. At Girlings we ensure that we fully understand your family situation, your wishes and what you do not wish to happen with your estate prior to drafting your Will. By taking the time to understand this, we are able to tailor our advice to you and the drafting of your Will to ensure that not only does your will accord with your current situation and wishes but where possible caters for foreseeable changes in the future and specifies what should happen if for example an intended beneficiary dies before you.
For further advice on Wills please contact a member of our Wills, Tax & Estates team. If you require advice on Divorce or dissolution of a civil partnership, please contact a member of our Family Law team.