Relationship Misconceptions and Considerations in Wills

Relationship Misconceptions and Considerations in Wills

There are so many misconceptions about relationships and how a particular relationship status can effect a Last Will and Testament. Here are few common misconceptions that we have heard during clients meetings.  

“My Will has been revoked as I am divorced”

This is incorrect. Your Will is not automatically revoked upon divorce but rather your ex-spouse is treated as being deceased within the terms of the Will.  The remainder of your Will remains valid. 

At times of separation and/or divorce it is much better to make a new Will to remove your spouse, if this is your wish rather than to do nothing. If you are in the middle of a divorce but the divorce has not yet finalised when you die, then your spouse will still inherit from your estate either under the terms of your will or if you do not have a will, under the rules of intestacy.

“My children will inherit my estate. I made a Will leaving my estate to them years ago, before I married my second husband”

This may not be correct.  Marriage automatically revokes a Will unless the Will is made in contemplation of marriage.   A specific clause would need to be included within the terms of the Will to prevent the Will from automatically revoking when you marry.  If this clause is not included within your Will, then your Will will automatically be revoked on marriage and you will be treated as dying without a valid Will. The first category of people to inherit from your estate in accordance with the Intestacy rules will be your spouse.

At times of change in relationships, your Will should be reviewed and advice taken as to whether a new one should be made.

“My family all get along and there is therefore no need to make a Will declaring who I would like the Guardians of my children to be”

This may well be the case.  However, picture the scene, your Husband has died before you leaving you as the sole parent of your two children.   Your two children are the last remaining link to your Husband’s family.  You then pass away.   Your children are then the last remaining link to your family.   While everyone is likely to get along, it may also be the case that everyone wants to do what is right by the children and both sides of the family wish to raise them.   Would an amicable agreement be reached in this situation? Would the children be raised by the person you would have chosen?

By appointing Guardian’s within your Will, there is an express intention as to who you would like to raise your children which is likely to prevent conflict and decision making about who will actually raise the children if there are no parents remaining.   

“My Partner and I have been together for 30 years and we consider ourselves common law spouses.  As we have been together for such a long time, we expect our estates to pass to each other if one of us was to pass away”

This is incorrect. The laws of Intestacy do not recognise cohabiting partners as “Husband and Wife” and your estates would therefore not automatically pass to each other. The phrase “common law spouses” has no meaning when dealing with the administration of estates after death.   There is a set order of family members to whom the estates would pass unless you have made a Will to contrary intention and this will not include your cohabiting partner.

If you are in a serious relationship with someone and wish to ensure that your assets pass to them.  It is important that you make a Will setting this out.

If you require any advice or assistance with making a Will, contact Lisa Franklin of Smith Partnership on 0116 2472004 for more information.

Author: 
Lisa Franklin

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