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Making a Will in divorce proceedings

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Making a Will isn’t the most exciting subject. And separating and thinking about death is a combination must people don’t want to think about. But ignore it at your peril and here’s some examples why.

Anne (not her real name) came to see me. She wanted a divorce having been on her own with her children for some years. Her husband had walked out and had not been on the scene for some time. Her divorce would be relatively straight forward but she had something more pressing. She bravely told me about her health worries and the treatment she was receiving. She was clearly worried about herself but more so she was worried about her children.

Anne didn’t realise that if anything happened to her whilst she was still married there would be very real financial consequences for her children. Despite her history of health difficulties she had not felt able to deal with making a will - she couldn’t face it. But now she needed to. 

Because if something happened to Anne whilst still married, her husband would automatically benefit from her estate as he was her next of kin. He was top of the pecking order to benefit because of the intestacy rules. These govern who gets what if you have no will. For Anne the first £250,000 of her estate and all of her personal belongings would go to her estranged husband despite the fact he wasn’t in her life. If there was anything else, the rest of her estate would be divided into two – half of it would still go to her husband and the other half would go to the children equally when they got to 18. So for Anne her children would actually get nothing because of what she had.  She couldn’t believe it.

Anne still lived in the jointly owned family home with the children and had been paying everything herself. Because it was jointly owned if she passed away the whole house would automatically go to him.

Whilst I didn’t want to cause Anne any more stress it was so important to have this conversation. Because of our talk she made a decisive plan and in some ways it gave her control over a situation she so far had felt she had little control. She made a Will setting out exactly what she wanted to happen to everything that she had and it was the children that featured throughout.  She even thought about specific gifts of jewellery for each of them.

To make sure she protected her share of the home for her children she was severed the joint tenancy, meaning that her share would go to the children – which she put on trust. 

Sorting the children out financially was one thing. But what about who would look after them if she wasn’t here? In her will she was able to appoint her sister and husband as testamentary guardians for them.  She had complete confidence in them as carers. Her will would not necessarily avoid an argument if their father came along in the future, but clearly set out exactly what Anne thought was best for them which meant her wishes would be clearly heard.

After our first meeting Anne prioritised the need to put her affairs in order and made what we call an ‘emergency will’. This set out her wishes for the immediate future but with a view to revisiting its terms once she was divorced and her legal situation – not to mention her health - had improved. We often find that things change and a new will is needed and this can be done under some fixed fee arrangements.

Paul (not his real name) wanted a divorce and had made ‘mirror’ wills with his wife which would give what they had to each other. Paul thought that because he was getting divorced his will would no longer be effective. He said he had read it somewhere. Wrong. 

Regardless of his intention to get a divorce, he was still married. If he died before his wife and before the divorce was finalised she would get everything.

Like Anne, Paul was told that he needed a new will but Paul unlike Anne had no children so he needed to think carefully about what he wanted to happen with what he owned.  Paul also took advantage of an emergency will.

So what about those who are divorced? Sadly, even then things can still be complicated. If a will was made before your divorce the will is still valid. Like Paul you may have mad mirror wills and your ex is the executor and is down to receive gifts. Once the ‘decree absolute’ is pronounced this removes your ex from the will completely but the rest of it – the appointment of other executors and gifts you may have made - remain valid.

Think about this – if your ex was set to receive the majority of your estate, and they are removed from the will, there is no-one to inherit what they would have had. In such instances, the intestacy rules kick in and your estate will default back to the next of kin. If you have no children a distant relative with whom you have no contact could be in line to receive a sizable sum of your estate. In the worst case scenario, it is the government who gets your money.

Research suggests that around 27 million of us have failed to make a will. This means the law will simply take over - often against your wishes.

Making a will can be relatively simple and inexpensive. The process is usually fairly straight forward and probate solicitors are experienced in dealing with all sorts of issues around wills and inheritance. A solicitor can usually draw up a basic will for around £250.

However, the cost of not having this legal protection could be considerably more.

By family and divorce solicitor, Mandy Rimmer