All a matter of will power?

Family Law|March 15th 2016

Radio Verulam is a not-for-profit community radio station based in St Albans down in Hertfordshire. We developed a relationship with them almost as soon as the local Stowe Family Law office opened a little over a year ago. (The name, incidentally, is simply an abbreviation of the Roman name of the town – Verulamium).

Now I drop by their studios every few weeks to answer questions from listeners on family matters.

I really enjoy these sessions because the questions are always interesting and testing but I specifically thought I’d share one question from this week’s show – because if there is a lecturer somewhere out there setting an exam in family law/ probate, you couldn’t ask for a more perfect case!

A listener wrote:

“My husband made a will 25 years ago leaving everything to his first wife. He got divorced from her a few years later and then we met and married and had 20 happy years together. He never made another will and I am heartbroken to learn that she will inherit his estate. Is there anything I can do?”

The status of the gift to the ex-wife and of the will itself is, legally, for me, quite fascinating. I think most lay people would simply assume it would stand and the second wife would get nothing. Happily for her, that is not the case!

As I wrote on Twitter, this the kind of question “every lawyer DREAMS of answering – it’s going to make one listener v happy!”

On decree absolute, that is to say, when a divorce becomes final, a gift made by an earlier will to a former spouse will automatically fail, unless the will specifically states that it is intended to survive divorce. So, in this case, on the assumption the will made no such statement (why would it?), the inheritance for the former wife fails.

When a spouse remarries, any will made before that marriage is automatically revoked – unless again, the will clearly states it is made in contemplation of remarriage. Clearly this one was not. So that means the entire will is also null and void.

So for clarity and certainty, it is important to always make another will if you made one in favour of your former spouse.

So what is the second wife’s legal position?

The gift failed on divorce and the will was automatically void on remarriage. So there is no valid will in existence.

If her husband had no children, under the Intestacy Rules she will inherit the entire estate. If there were children, she would receive the first £250,000 and half the rest. As a wife she pays no inheritance tax on her share of the estate.

If that isn’t enough to reasonably manage on (and it might not be), she could mount a challenge in court under the Inheritance (Provision for Family and Dependents) Act 1975 for provision to be also made for her out of the rest of the estate.

This poor lady, who I assume is quite elderly, was so worried about her finances she had to write to her local radio for advice. Had she seen a solicitor straight away she wouldn’t have had to worry. I hope I put her mind at ease and that she will now go see a solicitor confidently to get things sorted out.

And the moral of the above? Make a will when your circumstances change in law. Keep it fully updated. People often have a fear of making a will, but that is silly. By having one drawn up, you can be sure your wishes regarding your estate will be fully carried out when you are gone.

 

Next month Stowe Family Law solicitor Duncan Watson will take part in Make A Will month, in aid of St Michael’s Hospice. He will draft a limited number of basic wills free of charge in return for a donation to the hospice. To make an appointment, ring 01423 532 600.

Author: Stowe Family Law

Comment(1)

  1. Andrew says:

    And the ex-wife?
    .
    If she has not remarried and it is within six months of probate – and in some circumstances longer – she can mount a claim under the Act of 1975. This lady may not be out of the wood yet!

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