The effect of divorce
or dissolution on
your Will
Many of you will already be aware that marriage revokes a Will unless it
is clear that you were making it in contemplation of marriage, but did you
know that divorce or the dissolution of a civil partnership also has an effect
on your Will?
Section 18A of the Wills Act 1837 as
amended by the Law Reform (Succession)
Act 1995 s3(1) provides that where a
person makes a Will and subsequently
divorces, has their marriage annulled or
dissolves their civil partnership then their
former spouse or civil partner is deemed
for the purpose of the testator’s Will to have
died on the date that the marriage or civil
partnership ended (the date on which the
decree absolute or decree of dissolution
was issued).
The consequence of this is that if the former
spouse or civil partner has been appointed
an executor or trustee under the Will then the
appointment will not take effect. Similarly,
if the former spouse or civil partner were
to receive any benefit under the Will then
this gift would fail and any substitute gift
provisions would apply. If the former spouse
was the only beneficiary and there were no
substitute provisions then the estate would
be distributed in accordance with the rules
8
the society of will writers
of intestacy, which may not be how you
would like your estate to be distributed.
It is important to remember that if you are
currently separated and going through
divorce proceedings or dissolution but the
decree absolute or decree of dissolution
has not yet been issued then Section 18A
will not prevent any appointments to your
spouse or civil partner taking effect. For this
reason you should consider amending your
Will even before the divorce or dissolution
is completed.
Finally, it is also possible to exclude the
operation of Section 18A by including
an express declaration within your Will
to the effect of ‘Section 18A of the Wills
Act 1837 as amended by the Law Reform
(Succession) Act 1955 s3(1) shall not apply
to my Will.’ This would be appropriate
in circumstances where the Will is being
prepared in contemplation of the divorce
or dissolution.