During relationship breakdowns, it is likely that the last thing on anyone’s mind is their Will or the lack of a Will. However, arguably, it is as important as any part of financial negotiations or the making arrangements for children. It is an area which is commonly overlooked both by Solicitors and Clients and this can potentially lead to serious consequences if not addressed.
Is My Will Invalidated When I Divorce?
Until your divorce is finalised, any pre-existing Will is still valid and if you do not have a Will, your spouse remains your next of kin and will benefit from your Estate should anything happen to you under the Rules of Intestacy.
If you do have a Will, in most cases, Clients have usually appointed their spouse as Executor and their initial main beneficiary. If your Will is not updated prior to Decree Absolute being pronounced, once this has been granted, your spouse is treated as if they have “died” on that date. If he or she is your Executor, they will cease to be able to act, and they will not be able to inherit under the terms of that Will.
It is however strongly advisable that you update/make a new Will as this can take in to consideration your new personal and financial circumstances.
It should also be noted that in some divorces, parties continue to own property together, well after Decree Absolute has been granted. It would however be unusual for a Solicitor to advise parties to apply for Decree Absolute until they have a final Court/Consent Order in relation to financial issues. However, there are many occasions now where Solicitors are not involved with regards to the financial negotiations and parties do agree financial provisions between them in respect of property etc.
What is a Decree Absolute?
A decree absolute is the final order which concludes the divorce process. Your decree absolute certificate is the legal document you need to confirm that your marriage has officially ended.
Most married couples own property as “joint tenants” and this will mean that your share in the property would not pass by way of your Will or under intestacy. It would automatically pass to the surviving owner. A joint tenancy can, however, be severed so that each party owns a distinct legal share in the property and this can pass by way of provisions contained within any Will. These matters would be taken into consideration upon discussions with a Solicitor relating to obtaining a new Will and each party should and would receive individual advice which is appropriate to their personal circumstances.
Should I Appointment Guardians for My Children in My Will?
Whether parties are married or unmarried, it is likely that both parents will have Parental Responsibility for any child or children of the relationship. A person who has Parental Responsibility may appoint one of more individuals as Guardians in their Will.
It should be noted that whilst the other parent with Parental Responsibility survives, the appointment of a Guardian does not supersede their own Parental Responsibility. Where there is a dispute, this would have to be finalised by the Court. The intentions contained in your Will may be taken into consideration by the Court in any dispute.
What is Parental Responsibility?
Parental responsibility means that the individual has “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property”. The term ‘parental responsibility’ focuses on the parent’s duties towards the care and wellbeing of their child rather than the parent’s rights over their child.
This is obviously a very difficult and emotive situation, especially when one parent has limited contact with the child(ren), either because of a Court Order or through choice. The other parent may wish to consider making the appropriate appointment in their Will to at least provide an indication that they have considered this issue very carefully and provide a clear indication of their intentions or their wishes.
Taking time to consider a Will even in the difficult circumstance of a family breakup can avoid potential issues after your death and ensure your estate passes in accordance with your wishes and instructions.
Do I Need to Appoint a Guardian in My Will?
If you fail to appoint guardians in your Will and your children are orphaned before they reach 18, the courts will appoint guardians on your behalf. They won’t necessarily choose the people that you would have preferred to take care of your children so you should appoint a guardian for your children when you make a Will.
If you need a Will or wish to update an existing Will, or need advice on divorce or separation, then call us to speak with one of our team and to make an appointment.
Contact us
☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
About the Author
Amanda has worked in the area for over 30 years and was a partner in the firm of Green Williamson for many of those.
Amanda previously specialised in all aspects of Family Law but is also experienced in Private Client work and is now working across both the Family Team and the Private Client team as this area of work continues to grow. Amanda is now ably running our Ossett office where she enjoys being part of the community and advising clients about their future retirement planning and helping people deal with probate and estate planning.
Amanda has two children and is very proud of them both along with her husband who she has been with since she was a slip of a lass!
Amanda is an accredited Family Mediator and is a real asset to the team here at Thornton Jones.
#WakefieldSolicitors #MapplewellSolicitors #OssettSolicitors #GarforthSolicitors #SherburninElmetSolicitors #SolicitorsInLeeds #SolicitorsInWakefield …
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