Not many people realise that you can unintentionally revoke a Will. In some cases, this means your estate will pass under the intestacy rules, even though you thought you had done the right thing by putting a Will in place. Here is a guide to some of the ways in which a Will can be accidentally revoked:
- Marriage - under UK law, a marriage will revoke any Wills that were created before the date of the nuptials. If this happens, and goes unnoticed, the estate passes under the intestacy rules. The presumption here is that individuals would want to provide for their new spouse. Under the intestacy rules, a spouse is entitled to a statutory legacy of £270,000, all personal items and half of the remainder of the estate (if there are children of the deceased who inherit the other half). If there are no children then the spouse will generally receive the whole estate. This does not always reflect a person’s wishes, particularly in cases of second marriages. There are two ways to avoid this: 1. Create a Will in contemplation of marriage. This requires specific criteria to be met, the main one being that the Will is prepared in contemplation of marriage to a particular person (not marriage in general). 2. Prepare a new Will after the wedding. You should however take advise in either case, particularly if you are only making limited provision for your spouse as they have a legal right to challenge Wills which do not make sufficient provision for them under the Inheritance (Provision for Family and Dependants) Act 1975. [NOTE: Civil Partnerships are treated in the same way]
- Divorce - this does not strictly revoke a Will, however, if your former spouse is named as an executor or beneficiary, the Will is read as though they had died on the date of the decree absolute. Again, the idea is that most people would not want their ex-husband or wife to benefit from their estate. That being said, not all divorces are acrimonious. If you have children then there can be very good reasons why you may still wish your former spouse to benefit from your estate. It is also worth noting that former spouses also have a right to bring claims against an estate, and so this should be considered when preparing a Will. Furthermore, if your former spouse is an executor or trustee, and their appointment fails, then there can be issues around how your estate will be administered for any minor children. As a general rule, you should review your Will and general estate planning following a divorce as the financial and emotional consequences for yourself and your family are usually significant and so a previous Will is unlikely to remain relevant.
- Make a new Will - this may seem obvious and in many cases you would hope that your new Will did revoke an older Will. However, people often come a cropper when they have multiple Wills to deal with assets in different countries. This is fairly common practice, and is usually the advice given where individuals have assets in multiple jurisdictions. Having a Will in each country can make administration quicker but also means that you have advice on the different inheritance rules and whether or not there are any restrictions on how assets can be left (for example taking into account forced heirship rules). When someone is preparing multiple Wills, they need to take care to limit the scope of those Wills and to specifically ensure that it does not revoke Wills made in other jurisdictions. There would usually be a specific clause to state the extend of any revocation and the assets governed by the Will. If you do not tell your Will drafter about other Wills you have made then the chances are that a universal revocation clause will be included, revoking all earlier Wills anywhere in the world.
- Putting your Will somewhere really really safe - there is a legal presumption which says that, if the original Will was in the possession of the testator (person who’s Will it is) and, at the date of their death, it cannot be found, it is to be presumed that they revoked the Will during their lifetime by destroying it. If this is the case, the estate will pass under the intestacy rules. You should always keep your Will somewhere safe (preferably in fire proof storage) but it should not be impossible to find! Either tell your executors where it is stored or give it to your solicitor to keep in their secure storage. You should let your family know to contact the solicitor on your passing so the original Will can be handed over. If you are worried about prying eyes then you may be relieved to know that your named executors would need to provide evidence of your death in order for a solicitor to hand over your original Will.
If you think that you may have accidentally revoked your Will, or if you would like to discuss possible changes to your Will, then please contact Ashley Minott on 01494 893518.