There is a lot to consider for anyone making a will. Who should they leave their estate to? Who should be appointed as an executor? Who should be appointed as guardian for children? In many cases, this can be as straightforward as appointing a spouse as an executor and leaving the estate to the spouse and then to any children if the spouse has predeceased.
Making a will, however, is not one size fits all. It is becoming increasingly common that a will which may have previously left an entire estate to a spouse is no longer suitable. Divorce has a huge impact on estate planning as it is very likely that the intention to leave everything to the now-former husband or wife changes on divorce.
What Happens to Your Will After Divorce?
If you had made a will while married, divorce does not in itself invalidate the will. However, for inheritance purposes, the ex-spouse is treated as having predeceased. This would mean that there is a chance that your estate does not end up where you want it to.
This risks your estate being distributed according to the intestacy rules. This is a strict set of rules that dictates how your assets are handled. While this is sometimes children, it could be that this is more distant family, or if there is no one that stands to inherit under the rules, the Crown.
If your ex-spouse is also named as an executor of the will, they will no longer be able to act in such a capacity. If you have not appointed any extra executors, a third-party would have to act. This could cause delays in any application for a Grant of Probate and mean that your estate administration could take a long time to complete.
How Does Remarriage Affect Your Will?
It is important that your will accurately reflects your situation and any foreseeable future situation, such as marriage.
If you enter into a new relationship and make new wills while you are engaged or intend to marry, you need to ensure you provide for this in your will. This is because your will is revoked upon marriage.
Who Can Challenge a Will?
A will may be challenged by a spouse, former spouse (in certain circumstances), children, dependents, or any person with a legal interest in the estate. Common grounds for challenge include allegations that the deceased lacked the mental capacity to make the will, was subjected to undue influence or coercion, that the will was not properly executed in accordance with legal requirements, or that it failed to make reasonable financial provision for an eligible dependent where the law permits such a claim.
The existence of ongoing or unresolved divorce proceedings or concerns regarding the validity of changes made to a will during the breakdown of the marriage may also be relevant factors in determining whether a challenge can be brought.
When Should You Make a New Will?
If you are going through a divorce, but this has not yet been finalised, you may wish to make a will to cover your new wishes right away. If you were to pass away without a will during divorce proceedings or with an old will leaving everything to your spouse, they would still stand to inherit.
A new will allows you to update your chosen beneficiaries, appoint alternative executors and guardians where appropriate, and reduce the risk of disputes or challenges to your estate. Taking this step provides greater certainty that your estate will be administered in accordance with your current intentions rather than arrangements made before the breakdown of a marriage.
How O’Donnell Solicitors Can Help
Whether you are going through a divorce, planning to remarry or simply want to ensure your estate reflects your current family circumstances, reviewing your will is one of the most important steps you can take to protect the people who matter most.
Our experienced Private Client team can advise you on updating your will, planning for blended families, appointing executors and guardians, and ensuring your estate is structured in accordance with your wishes. We work closely with our Family Law colleagues where appropriate, providing joined-up advice during periods of significant life change.
From our offices in Uppermill and Saddleworth, we support individuals and families across Greater Manchester and the surrounding areas with clear, practical estate planning advice.
If you’d like to review your existing will or discuss making a new one, contact O’Donnell Solicitors today on 01457 761320 to arrange an appointment with a member of our Private Client team.