Marriage and Divorce: The Effect on Wills

10 Aug 2011

Many people do not realise that a Will is normally automatically revoked by marriage. This is the result of an old law which originally goes back to 1837 when married women had very few rights, and was designed to ensure that a new wife was not left destitute if her husband died.

Failure to realise that marriage revokes a Will can lead to unfortunate and unintended results. A couple of theoretical examples:

–  Mrs X made a Will in favour of her daughter of her first marriage. After making the Will not only did she remarry but she separated from her second husband and started divorce proceedings. She died before the divorce was finalised and so her estranged husband was entitled on her intestacy. In this particular case the size of the estate was such that the whole of it went to the husband.

–  Mr and Mrs Y married late in life. They had both made Wills several years before they married one another. The main beneficiary under Mrs Y’s will was her son, while Mr Y’s will was in favour of friends and charities. Both wills were revoked by marriage so both died intestate. Mrs Y died first and Mr Y became entitled to her whole estate on her intestacy. Mr Y then died leaving surviving relatives with whom he had had no contact for years, who were then entitled to all the couple’s assets.

These stories stress the importance of making a new Will following marriage. In addition, anyone who is in a settled relationship should consider whether they can prevent their Will being unintentionally revoked if they marry their partner.

Divorce does not completely revoke a Will but only causes a gift to the former spouse to lapse. Whilst this is often what is wanted, it may not be desired in every case. Furthermore the will may not include adequate alternative provision in the event of the failure of the gift to the former spouse. An appointment of the former spouse as executor is also automatically cancelled. This could leave the Will without executors if the former spouse was sole executor or with too few executors if the former spouse was one of two executors and the situation is one where more than one executor is needed. The result is extra complications following death.

Your Will should always be reviewed following a life-changing event such as marriage or divorce. For advice on Wills you should see a solicitor.