Making a Will following separation or divorce

Making a Will after separation or divorce
In this article we look at the implications of separation and divorce on your Will.

Divorce

It is typical for couples who have divorced or dissolved their civil partnership to use a consent order to record their financial arrangements. Typically, these will seek to create a ‘clean break’. Although there is no duty to grant one and indeed one will not be granted if it is inappropriate,[1] there is a ‘statutory steer’ towards such arrangement.[2] Consequently agreements often include a clause that neither party can claim against the other’s estate in the future.

Many solicitors routinely advise couples to sort the finances before they apply for the Decree Absolute. Sometimes there is even good legal reason to wait – for example:

  • The person intends to remarry straight away. (They can still apply for the Absolute but shouldn’t marry until finances are resolved)
  • One of the them dies suddenly – if there is NO absolute, they are still married and inherit accordingly (which may or may not be financially beneficial!)
  • Certain assets exist – trust funds, pension funds and other complex assets – which cannot be transferred except to a spouse.
  • There is a tax benefit in transferring a particular asset to a spouse (most spousal transfers are exempt from e.g. Capital Gains Tax).

However, these reasons do not apply to every client. Further, divorce can be emotionally traumatic and clients may feel that they do not want to wait for months or years to reach an agreement where their ex is being less than facilitating. Consequently arrangements for financial provision may be finalised well after the divorce is completed. Unfortunately it also means that in some cases, no consent order is obtained. Further, not every consent order excludes an Inheritance Act claim.

The effect of this is that former spouses and civil partners who have not remarried will still have the ability to claim for reasonable provision under the Inheritance Act, s1(1)(a) and s1(1)(b) respectively, regardless of the fact that the client makes a Will directing their property elsewhere.

If clients have divorced but not yet finalised such matters, we will always look to advise them of the risk.

Separation

Where a spouse or civil partner has separated, this is no bar to a claim, even if they have formed a new relationship. The potentially devastating consequences of this can be seen in Martin v Williams.[3] Briefly, the Deceased Mr Martin cohabited with the original claimant, Joy Williams but remained married to Mrs Martin. His Will left his entire estate to his wife. Mrs Williams made an I(PFD)A1975 claim and initially the court awarded her Mr Martin’s 50% share of the home they had occupied. On appeal, the High Court substituted the award with a life interest in the share, rent free. Of note, the appeal was allowed because the original Court failed to take certain matters into account that should have been considered under s3[4]. One such matter was Mrs Williams’ ownership of another property which could have been used to meet her needs. The existence of this property impacted what was required for her maintenance.

It should be noted that had Mrs Martin been the applicant under the Inheritance Act, her claim would not have been limited to what was required for her maintenance as it was for Mrs Williams, regardless of the length of separation.[5]

The case demonstrates the importance of advising clients who are separated about the possibility of a claim. They may wish to consider their legal options, such as a legal separation or divorce.

If you are separated, going through a divorce or previously divorced, speak to us about the impact on your Will.

[1] Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.

[2] Matthews v Matthews [2013] EWCA Civ 1874.

[3] Martin v Williams [2017] EWHC 491 (Ch) (on appeal from the County Court).

[4] Inheritance (Provision for Family and Dependants) Act 1975 s 3.

[5] Inheritance (Provision for Family and Dependants) Act 1975 s 1(2)(a) and (aa) for civil partners.

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