Change Will

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October 3, 2016 by Jen Wiss-Carline

Do I need to change my Will?

It is important to review your Will from time to time to ensure that it is still valid and serves its purpose.

Many people revisit their Will following a major life event, such as marriage or civil partnership, divorce or dissolution, separation, the birth of a child, the death of a spouse or relative, or a change in your financial circumstances. It also pays to consider the most recent legislation, tax laws and the current financial climate.

In this article we look at various reasons why you might need to change your Will and what can happen if you don’t make those changes.

Marriage

Changing a Will following marriage

In most cases, marriage has the effect of automatically revoking any Will you have made. Revoking means cancelling, so that the Will is no longer valid. The only time a Will is not revoked following marriage is if you make the Will in contemplation of marriage (Wills Act 1837, Section 18). In such cases, there are some requirements:

  • You must name the person you are marrying in your Will rather than mentioning marriage in general terms – Sallis v Jones [1936]
  • You must plan to marry the person in the foreseeable future. In one case, the testator, who benefited ‘his wife’ in his Will, did not actually marry his wife until 25 years later. The Will was held to be revoked by marriage – Re Gray’s Estate [1963]. However, in another case, the Will of a testator who left all his ‘worldly goods’ to his wife was held to be valid – he married his wife just three years later and this was considered acceptable – Pilot v Gainfort [1931].
  • You must make it clear that you intend the Will not to be revoked when you get married – this is done by expressly stating as much in your Will.

Note that in Scotland, getting married does not automatically revoke your existing Will.

Civil Partnership

Changing Will - civil partnership

Since December 2005, those in a Civil Partnership have been treated in the same way as married couples. Once you register a Civil Partnership, any Will you have made will be automatically revoked. As for married couples, you can make a Will in contemplation of entering into a Civil Partnership. The above requirements are exactly the same for a Will made in contemplation of a civil partnership as they are for a Will made in contemplation of marriage.

Note that in Scotland, entering into a Civil Partnership does not automatically revoke your existing Will.

Divorce

Changing Will - divorce

While marriage or entering into a civil partnership can potentially revoke your Will, you may be surprised to learn that divorce or dissolution does not.

If you divorce, or your marriage is ended by a court order (such as an annulment), your Will is still valid. However, any gift made to your former spouse/civil partner is treated as if they died on the date your decree became absolute. In effect, this means the gift usually goes back into the residue of your estate. If however you left everything to them, the effect is as if you died intestate (without a Will) and your assets will be distributed according to the rules of intestacy.

Note that:

  • If you appointed your former spouse or partner as an executor or trustee, this will also be treated as if they died on the date of the decree absolute.
  • If you appointed them as trustee of a trust, for the benefit of the children of the marriage/partnership, the trust will fail.

Since divorce does not revoke your Will, it’s important to make a new Will on separation. There’s no need to wait until the divorce has been finalised and it would be unwise to do so, as if anything happened to you before the divorce was finalised, your assets may go to your former partner.

Separation

Changing your will - separation

You may have separated from your spouse or partner to give you both the space to better understand your feelings. It can be a confusing time, and you may not yet know whether you want to reconcile or whether you would like to take things further with a divorce.

During this time, it’s important to realise that your Will is still valid and your spouse or partner could benefit from all of your assets, should anything happen to you.

Some people choose to make a short term, ‘holding’ Will while they are separated. This can then be updated in more detail once you have decided how you want to move forward. It is not important that you do not yet know exactly how the assets of the family would be distributed, should you go on to divorce.

Joint tenants / tenants in common

Tenants in common - joint tenants

A crucial consideration if you have separated is the issue of joint tenancy. Many couples own their home as joint tenants. This means they each own a 100% undivisable share of the property. If one dies, the other continues to own the entire property, and vice versa.

By contrast, couples who own their property as their property as tenants in common each have a definite share of the property that they can leave to whoever they want in their Will.

A joint tenancy can be ‘severed’ to create a tenancy in common. Usually this is done by giving notice to the other person that is recorded at the Land Registry.

The fact that you have separated from your partner does not necessarily sever the joint tenancy in itself (see e.g. Davis v Smith and Kernott v Jones). If you do not serve notice and something then happens to you, your estranged spouse could end up with 100% ownership of your property.

You should therefore take legal advice if you own a property with your spouse/partner and you have separated. In many cases, the right course of action will be to sever the joint tenancy and make a Will stating what you would like to happen to your share of the property.

The birth of a child/grandchild

Growing family

There are two main considerations relating to your Will if you have another child.

The first is that you should appoint a guardian for them, should anything happen to you. The easiest way to do this is in your Will.

The second relates to your property. If the child is your first child and you plan on having more children, you could amend your Will to leave property to your children, as a class of beneficiary. This means that on your death, the property you’ve specified will be distributed between any children that you have.

You will need to decide what will happen if one of your children does not survive your death. Will the gift to them go to their estate, or will your property simply be divided between any children of yours that are living at the time of your death?

If one of your children has now had children of their own, you will have similar considerations – will you be leaving your grandchildren a share of your estate as a class of beneficiary and what happens if one of them does not survive you?

There are quite a few possible pitfalls here and it is a good idea to get legal advice to ensure that what you write in your Will has the effect that you intend.

Death of a spouse/partner/relative

Death of relative

If one of your relatives dies, you may need to revisit your Will. This might happen because:

  • You have left them a gift in your own Will
  • They were your executor or trustee
  • They were appointed a guardian of your child
  • They have left you a gift and you now have additional assets to consider

Similarly if your spouse or civil partner dies and leaves their assets to you, you will need to update your Will to say what you would like to happen to that property on your death.

A change in your financial situationChange in financial situation

If your assets change – for example, you sell your home and buy a new one – you may need to change the Will to reflect the new assets. This is particularly true if your previous home was named specifically in the Will. You might have left the property in trust to your partner for life, and then your children or grandchildren – to protect it from care cost fees. You will need to make an update to your Will so that the new property is now left on trust.

Better planning

Plan and minimise inheritance tax

It makes sense to visit your Will from time to time to ensure it works the way you want it to, particularly in light of any recent legislation. The law is constantly changing – for example, it is likely that from next April, couples will be able to leave up to £1 million  free from inheritance tax to their children or grandchildren, provided that the family home is included in the estate.  However, whilst this seems like an attractive tax break, taking advantage of it might not be in your best interests (see ‘Potential Pitfalls’ in our article ‘The Residence Nil Rate Band – Pitfalls and Problems‘).

Some people who have made simple Wills in the past choose to revisit their Will to ensure it helps them protect their assets in the future. For example, leaving your share of the property to your partner for life and then to your children will ensure that your share of the assets are not taken by the Local Authority should your partner need care in the future (see ‘Care Fee Trust Wills‘). It also ensures that if you die and your partner gets remarried, your share of the assets will not pass sideways out of the family. This can happen if your spouse/partner gets remarried and makes a Will leaving everything to their new spouse/partner – and then dies first (see ‘Bloodline Wills‘).

New Will or Codicil?

Codicils – documents stored with the Will that amend the Will – are only suitable for very minor changes. They can get lost and they can be confusing where there is more than one. In many cases, a new Will is advisable.

DIY or professional?

It is of course possible to make a Will yourself. However, unintended consequences can occur and unfortunately you won’t be around for consultation! Legal interpretation and family disputes can result in long winded and expensive litigation. It is also worth noting that there have been an increasing number of challenges to Wills in recent years, some of which have been successful.

We would always advise that you use a qualified and experienced lawyer to draft your Will but as a minimum, we would suggest that you take legal advice before attempting to draft a Will yourself.

Speak to us

Why not book a free, no obligation Will review with one of our experienced team? We have locations throughout the UK and we can also offer home visits where this is more convenient.

To book a free appointment with one of our lawyers or solicitors, call us on 0800 788 0508 or email info@aprilking.co.uk.