Learning Outcomes
After studying this article, you will be able to explain how divorce or dissolution of a civil partnership affects the operation of wills under English law. You will understand the statutory rules on automatic revocation of will provisions for former spouses or civil partners, the meaning and requirements of a “contrary intention,” and the practical consequences for estate distribution and administration. You will also be able to apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the legal consequences of divorce or dissolution on wills and the statutory framework that governs revocation of will provisions. In your revision, focus on:
- the effect of divorce or dissolution on gifts, appointments, and powers in favour of a former spouse or civil partner
- the operation of s.18A Wills Act 1837 and equivalent provisions for civil partnerships
- the concept of “contrary intention” and how it can prevent automatic revocation
- the practical impact of partial revocation and the risk of unintended intestacy
- how to advise clients on updating wills after relationship breakdowns
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What happens to a gift to a spouse in a will if the testator divorces after making the will and does not update it?
- Does separation (without a final divorce or dissolution) affect the operation of a will in favour of a spouse or civil partner?
- What is required for a will provision in favour of a former spouse to survive divorce or dissolution?
- If a will appoints a spouse as executor and the marriage is later dissolved, who will administer the estate if no substitute is named?
Introduction
The effect of divorce or dissolution on wills is a key topic for SQE1. English law provides that certain provisions in a will relating to a former spouse or civil partner are automatically revoked if the marriage or civil partnership is ended by a final court order. This article explains the statutory rules, the meaning of “contrary intention,” and the practical consequences for estate planning and administration.
Automatic Revocation: The Statutory Rule
When a testator divorces or has their civil partnership dissolved after making a will, the law treats certain provisions in the will as if the former spouse or civil partner had died on the date of the final order. This is set out in s.18A of the Wills Act 1837 (for marriages) and equivalent provisions for civil partnerships.
Key Term: automatic revocation The statutory rule that certain will provisions in favour of a former spouse or civil partner are revoked by divorce or dissolution, unless the will shows a contrary intention.
The following provisions are automatically revoked:
- any gift or beneficial interest to the former spouse or civil partner
- any appointment of the former spouse or civil partner as executor, trustee, or guardian
- any power of appointment conferred on the former spouse or civil partner
After divorce or dissolution, the will is read as if the former spouse or civil partner had died before the testator. This means that any substitutional gifts or appointments in the will take effect.
Key Term: contrary intention A clear statement in the will that the testator intends provisions for a spouse or civil partner to remain valid even if the relationship ends.
Worked Example 1.1
A testator, Sam, makes a will leaving his entire estate to his wife, Emma, and appointing her as sole executor. They later divorce, and Sam dies without updating his will. What is the effect?
Answer: The gift and appointment in favour of Emma are revoked by law. The will is read as if Emma had died before Sam. If the will contains no substitute beneficiary or executor, the estate (or part of it) may pass under the intestacy rules, and the court will appoint an administrator.
The Scope of Revocation
The automatic revocation applies only to provisions that directly benefit or enable the former spouse or civil partner. Other parts of the will remain valid. The rest of the will is not revoked by the divorce or dissolution.
If the will contains substitution clauses (e.g., “if my spouse does not survive me, then to my children”), these will operate as if the former spouse or civil partner had predeceased the testator.
Key Term: partial revocation The effect that only certain provisions of a will (those relating to a former spouse or civil partner) are revoked by divorce or dissolution, while the rest of the will remains valid.
Key Term: substitution clause A clause in a will that provides for an alternative beneficiary or executor if the primary appointee cannot take (e.g., due to death or revocation).
The Exception: Contrary Intention
The statutory revocation does not apply if the will shows a contrary intention. This must be clear and explicit in the will itself. General statements are not enough; the will must state that the testator intends the provisions for the spouse or civil partner to remain valid even if the relationship ends.
Worked Example 1.2
Clare makes a will leaving £10,000 to her husband, Mark, and states: “I wish this gift to remain valid even if we divorce.” They later divorce. What is the effect?
Answer: The gift to Mark is not revoked by the divorce, because the will contains a clear contrary intention. Mark will still inherit the £10,000.
Timing and Limitations
The revocation takes effect only when the divorce or dissolution is made final by the court (decree absolute or final order). Separation or ongoing proceedings do not trigger the statutory revocation. If the testator dies before the final order, the will operates as originally written.
Worked Example 1.3
Jasmin and Alex separate and begin divorce proceedings. Jasmin dies before the decree absolute is granted. Her will leaves her estate to Alex. Does Alex inherit?
Answer: Yes. The will operates as written because the divorce was not finalised. The statutory revocation does not apply to separation or pending proceedings.
Practical Consequences and Risks
Partial revocation can lead to unintended results. If a will leaves most or all of the estate to a spouse or civil partner, and that gift is revoked by divorce or dissolution, there may be no effective gift of the estate. In such cases, the property passes under the intestacy rules, which may benefit distant relatives or cause administrative complications.
If the former spouse or civil partner was appointed as executor or trustee and no substitute is named, the estate may be left without a personal representative, requiring the court to appoint an administrator.
Exam Warning
If a will leaves everything to a spouse or civil partner and that gift is revoked by divorce or dissolution, the estate (or part of it) may pass under intestacy. Always check for substitution clauses and advise clients to update their wills after relationship breakdowns.
Powers of Appointment and Trusts
Any power of appointment given to a former spouse or civil partner is revoked by divorce or dissolution. If the will creates a trust and the former spouse or civil partner was a trustee or had discretionary powers, those powers are revoked unless the will shows a contrary intention.
Foreign Divorces and Recognition
If a divorce or dissolution is obtained outside England and Wales, the effect on a will depends on whether the foreign order is recognised under English law. If it is, the statutory revocation applies. If not, the will operates as originally written.
Remarriage and Revocation
Note that remarriage (or entering a new civil partnership) generally revokes the entire will unless the will was made in contemplation of that marriage or partnership. This is a separate rule from the effect of divorce or dissolution, which only partially revokes the will.
Updating Wills After Relationship Breakdown
Testators should always review and, if necessary, update their wills after divorce or dissolution. The safest approach is to make a new will, which will revoke all previous wills and reflect current wishes. A codicil can be used for minor changes but must comply with the same formalities as a will.
Revision Tip
Always advise clients to review their wills after divorce, dissolution, or separation. Failure to do so can result in unintended beneficiaries or intestacy.
Key Point Checklist
This article has covered the following key knowledge points:
- Divorce or dissolution automatically revokes gifts, appointments, and powers in favour of a former spouse or civil partner in a will, unless the will shows a contrary intention.
- The statutory rule treats the former spouse or civil partner as having died before the testator for the purposes of the will.
- The rest of the will remains valid; only the affected provisions are revoked (partial revocation).
- Separation or pending proceedings do not trigger revocation; the final court order is required.
- A clear contrary intention in the will can prevent automatic revocation.
- If no substitute beneficiary or executor is named, intestacy or administrative difficulties may arise.
- Testators should always review and update wills after relationship breakdowns.
Key Terms and Concepts
- automatic revocation
- contrary intention
- partial revocation
- substitution clause
