Wills on divorce/separation and marriage
I have had a number of cases recently which highlight (a) the need to have a Will and (b) how essential it is to regularly review that Will. Two in particular spring to mind which relate to Wills on divorce/separation and marriage.
Case Study 1.
I had an elderly lady come in to see me. Sadly, she told me that her son, in his 50’s, had recently died without leaving a Will and she instructed me to deal with administering his estate. I established that he had suffered a number of problems over the past years emanating from his wife leaving him, for his best friend, some 25 years ago. The separation was extremely acrimonious. He had never got over the hurt.
I was instructed that he and his then wife had purchased a house together and when she left, he bought her out and took over the mortgage which, at the time of his death, had been paid off. They had no children and he was an only child. He had no contact with her since that time and his mother instructed me that he was divorced. He had been involved in other relationships since his separation, but nothing long term and had never married again.
We started administering the estate while his mother started clearing the house, ready for sale. Whilst in the process of preparing the paperwork, I asked his mother if she had found a decree absolute or anything relating to the divorce and she told me she hadn’t. I found this quite out of character as the deceased was, some may describe as, a hoarder. He had paperwork relating to his mortgage application, purchase of the property and even his marriage, but nothing relating to a divorce. I did a search and came up with nothing. I advised his mother that we needed to put a hold on administering the estate and clearing the house until we had resolved this issue.
A month after his death, the mother received a letter from a solicitor saying they had been instructed by the deceased’s wife, who remember, he had had no contact with for 25 years. She had read about his death in the local paper. The solicitor confirmed our worse fears…they were never divorced and therefore as his ‘wife’, and the fact that he had died without a Will, she was entitled to his estate, all of it!
It was a sad end for my client. She had supported her son through some extremely difficult times over the years both emotionally and financially and yet, in her eyes, the perpetrator of all the hurt and suffering, had ended up benefitting from his death, while the devoted mother, who had supported him throughout, just had to sit back and watch it happen.
As an added twist, the relationship between the deceased’s mother and his ‘wife’ was, following the separation, very hostile and they had not spoken since. We suggested that as a show of compassion, the ‘wife’ may care to share the deceased’s estate with his mother. The response was a simple and curt, “no”!
Had the deceased made a Will following the separation, all of this could have been avoided. Sadly that wasn’t the case. The ‘wife’ ended up inheriting everything totalling around £400,000. The lesson learned is, if you are contemplating or are in the throes of separation/divorce, review and if necessary update your Will, if you don’t have one, make one.
Case Study 2.
I had a lovely family visit me recently, two brothers and a sister. They wanted some advice.
Their father had recently died and had left a Will naming one of the sons as Executor. In the Will he had left everything to his children, who were from his first marriage, in equal shares. The deceased owned a house in his sole name and was relatively comfortably off.
I was informed during the meeting that the father had remarried and that the marriage had taken place AFTER he had made his Will. He never updated his will after his marriage believing the existing Will would remain valid.
Unfortunately, I had to advise the children that marriage, unless it is made in contemplation of marriage and explicitly states this, automatically revokes a Will. Effectively, their father had died without a valid Will. Therefore, the second wife was entitled to £250,000, with the rest split between her in trust and his children. It is worth noting that interest starts to accumulate on the £250,000 entitlement from the date of death which soon adds up.
it is worth noting the difference between these two case studies in that while divorce does not invalidate a Will, marriage does!
Is it time to update or make your Will?
The risks of using unregulated will writers
A woman is seeking hundreds of thousands of pounds compensation from a high street bank, claiming the bank's will-writing service resulted in her losing a stake in a valuable London home.
In 2007, her father used the bank’s £90 will-writing service to create a will dealing with his various assets including homes overseas and in London. His will instructed half of the London home to be given to his daughter, from a previous marriage, on his death.
The property was owned jointly by the father and his current wife – who was not his daughter’s mother. Because of the joint ownership, on the father’s death in early 2014, the property went wholly to his wife – in contravention of the wishes spelt out in the will.
The complaint was assessed by the Financial Ombudsman Service (FOS), the bank was found at fault. The Ombudsman ordered the Bank to pay "a fair and reasonable settlement". The bank decided to ignore the Financial Ombudsman's recommendation. The bank said that since its will-writing division was not regulated, it would not have to adhere to the Ombudsman's findings. The Ombudsman had to accept this was technically correct.
In order for the will's conditions to have been fulfilled, the bank should have severed the joint tenancy. This would have enabled half of the property's value to pass as instructed to the daughter. Because the severance process was neglected, the joint tenant, the widow, is legally entitled to the whole property which she can now bequeath as she pleases.
The case highlights the danger of popular, cheap wills which are often too simplistic to reflect accurately their owner's wishes.
Where parents remarry and/or enter into property transactions with their new spouse/partner, new wills should be made professionally. Contrary to popular belief, it is not enough to ‘scribble your wishes on a piece of paper’ or buy an ‘off the shelf will package’ from your local stationery supplier. You should also receive specialist advice on the contents of the will so that further action can be taken to avoid costly consequences. That advice costs but the consequences of not seeking that advice are all too sadly detailed in this case.
Bearing in mind the comments from the bank that nothing can be done because they are unregulated should also serve as a warning to you. All Solicitors are regulated and carry compulsory professional indemnity insurance for your protection.
If you would like us to review your will for you, please call to make an appointment.