Revocation of wills - Effect of divorce or dissolution on will provisions

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Overview

Understanding how divorce or dissolution impacts wills is important for the SQE1 FLK2 exam, bridging the areas of testamentary, family, and property law. This topic involves understanding automatic revocation and the interpretation of intent, combining statutory rules with common law principles. Skill in these areas is essential for aspiring solicitors, influencing estate planning, administration, and potential legal disputes.

Statutory Framework and Automatic Revocation

The core statutory guideline is Section 18A of the Wills Act 1837, amended by the Law Reform (Succession) Act 1995. This establishes that certain will provisions are automatically revoked following a divorce or dissolution of a civil partnership.

Key Provisions of Section 18A

  1. Provisions are revoked if they:

    • Appoint the former spouse as executor or trustee
    • Grant a power of appointment to the former spouse
    • Bequeath property to the former spouse

  2. The will then acts as if the former spouse passed away on the dissolution date.

  3. This also applies to civil partnerships under the Civil Partnership Act 2004.

For instance, if John's will names his wife, Mary, as the main beneficiary and executor, their divorce will revoke those sections. It's as if Mary died before John, so his estate will follow other will instructions, or intestacy rules if none exist.

Exceptions to Automatic Revocation

Automatic revocation isn’t absolute. Section 18A(4) contains an exception:

  • The rule doesn’t apply if the will shows a clear opposite intention.

This highlights the importance of the will's language and context.

Judicial Interpretation and Case Law

Courts play a key role in interpreting Section 18A. Key cases include:

  1. Re Sinclair (deceased) [1985] Ch 446
    • Set guiding principles for interpreting intent concerning divorce.
  2. Kershaw v Micklethwaite [2010] EWHC 506 (Ch)
    • Explored the link between divorce and conditional gifts.
  3. Re Whiting's Will Trusts [2012] EWHC 3079 (Ch)
    • Addressed "contrary intention" clarity needed to counteract revocation.

Practical Considerations for Estate Planning

Key aspects for SQE1 FLK2 candidates to remember:

  1. Timing of Revocation

    • Occurs when the final divorce decree or civil partnership dissolution is granted. The period between separation and final order is important if the death occurs then.

  2. Partial Revocation

    • Only sections involving the former spouse are revoked. This can complicate the estate's distribution scheme.

  3. Impact on Trusts

    • Former spouse’s trustee appointments are voided, affecting trust administration.

  4. Powers of Appointment

    • Revoking these powers can impact estate planning structures.

Substitution Clauses

Substitution clauses ensure assets go to alternate beneficiaries if the primary one is affected by divorce or death. Including these can maintain clarity and continuity in estate plans. For example, if John's will included his brother Peter as a backup if Mary is no longer his wife, Peter would inherit after their divorce.

Revocation by Intention

Although divorce automatically revokes provisions for an ex-spouse, the testator can revoke or amend their will directly. Methods include writing a new will, explicitly revoking the old will, or adding a codicil.

For example, Sarah could revoke her current will by drafting a new one naming Richard instead of Tom.

Complex Scenarios and Examples

Example 1: Conditional Gifts and Divorce

Testator T leaves £100,000 to "my wife W, if she is still my wife at my death. Otherwise, this goes to my sister S." After divorcing, T dies without changing the will.

  • Despite the condition, courts may see this as a failed gift. S would receive the amount.

Example 2: International Elements

T, holding a British will leaving all to wife W, moves to France and divorces there. T dies without updating the will.

  • Consider if French divorce is recognized in the UK, allowing Section 18A to apply.

Example 3: Revocation and Revival

T creates Will 1 for W, divorces, makes Will 2 for P, then remarries W without a new will.

  • Will 2 stands. Remarriage doesn’t revive Will 1.

Practical Tips for Legal Professionals

Advisors should convey the implications of divorce on wills, stressing the need for updates after major life changes:

  • Explain Automatic Revocation: Inform on the impact of revocation related to ex-spouses.
  • Discuss Substitution Clauses: Guide clients on drafting these for smooth transitions.
  • Emphasize Updates: Highlight the importance of updating wills after life changes.
  • Address Intestacy: Explain how intestacy impacts estate distribution without a valid will.