People often say that if you ignore something long enough it will go away. Sadly however this is not the case with writing a will. And failure to make a will could have terrible consequences for your family. The reality is that death comes to us all. We might not like to think about it but its one of the only certainties we have. It doesn’t matter who you are, one day you are going to die, so making plans for that inevitability should be a matter of common sense.
I have lost count of the number of clients that have said after the initial meeting “That was much easier than I thought”. It is like a lot of other tasks that you put off and avoid, when you finally get around to it, it is never as bad as you expected it to be.
Making or updating a will is particularly vital if you are going through a divorce. Even the Decree Absolute document itself emphasises the importance of reviewing your will.
For instance, if your now ex husband or wife had been appointed as your Executor (ie the person who collects in all your assets, pays off your debts and distributes your estate) in your will, then this appointment shall fail following divorce. This could mean if you had appointed your ex as your sole Executor, without any provision for a replacement, this would have to be rectified upon your death, leading to delays and wasted solicitors costs and court fees.
And if you had left a gift to your ex husband or wife in your will, that gift will also fail.
Basically, the law dictates that if a former spouse is appointed an Executor or a beneficiary of your will, it shall be as if they have predeceased you, therefore they cannot benefit from your will nor accept the Executorship appointment.
It is common for married people to appoint each other as Executors and leave everything to the survivor on the first death. If you have one of these wills it is extremely important that the will is revised upon divorce.
It is especially important to make a will to ensure that your children are properly provided for.
Divorce also affects guardian appointments in a will. If the couple getting divorced have children together, and not from previous marriages, then the remaining parent shall continue to have responsibility for those children as that parent also has parental responsibility for those children. If there were children from a previous partner, and the wife, for example, had appointed the now former spouse as guardian in her will, this appointment would fail. The former spouse was not the biological parent of the child and therefore does not have parental responsibility for the child. He (or she) cannot be automatically empowered to continue to parent the child; he has to be chosen by the mother in her will. When this couple divorce, this appointment fails. If no other person is appointed, it shall be for Social Services to assess who is the appropriate adult to parent the child.
Emily Hockin is based at Slee Blackwell’s Braunton office in North Devon and specialises in both wills and divorce. You can email Emily at [email protected]