Divorce (and Dissolution)
Spouses and civil partners, this is for you
One day all of this will be yours.
All of it included the resplendent Grade I Castle Howard, with its 145 rooms, gardens, lakes and extensive grounds 15 miles north of York.
No thanks, said Mary Murray, after the deaths first of her father, George, 9th Earl of Carlisle, in 1911, her brother Charles less than a year later, and finally her mother, Rosalind, in 1921.
Ownership then passed to Mary’s younger brother, Liberal MP Geoffrey Howard. After his death in 1935 a family trust had to be set up. His children were too young to inherit, and by the time they reached maturity, the Second World War had begun. Two sons were killed in the war: Mark, in Normandy, and Christopher, who was part of the Dambusters team.
A third son, George Howard, was wounded, and Castle Howard eventually went to him. He opened the house and grounds to the public in 1952. Still privately owned, Castle Howard is occupied by Simon Howard, a company director, and his wife Rebecca.
Breaking up for good - divorce (for married couples) and dissolution (for civil partners) - has a limited but powerful effect on wills. It does not revoke or nullify the will outright. Rather, it prevents the ex-spouse/civil partner from
- acting as executor
- receiving gifts specified in the will.
A specific gift originally designated for the spouse goes into the residue if the will does not name an alternative beneficiary.
"If you divorce or dissolve your civil partnership after your will is made, any reference to your former spouse or civil partner will be treated as if he or she had died on the day that the decree absolute or final dissolution order was made."
www.hmcourts-service.gov.uk/infoabout/civil/probate/why_will.htm
You can override this automatic revocation by stating in the will that you want the gift to remain even in the event of divorce.
"...As if he or she had died."
This stark phrase - As if he or she had died" has an important history.
Consider a 1985 case in which, fairly routinely, a man made a will leaving everything to his wife, and if she predeceased him, his estate would go to charity. They divorced, so his gift to her was void. However, his estate could not go to charity because she was still alive: the will specified that the charity would benefit if she predeceased him. The will was ruled ineffective, and instead of charity benefitting, the man was declared to have died intestate.
In 1995 a new law addressed this problem: the divorced spouse (or dissolved civil partner) is deemed to have died. The gift is then treated as the testator indicated.
Review yes, revise probably
Divorce is one of those major life events which should induce you to review your current will and maybe make a new will altogether.
Wills can become especially tricky if there is a divorce and one or both parties then marry again or enter a new civil partnership. Marriage automatically revokes your previous will (unless that will expressly states that it was made in contemplation of your upcoming marriage). So if you divorce and make a new will and marry again, you will probably need to make yet another new will.
"What I find so unfair is that if we both died today, her children would get much more than mine".
Monty Python comedian John Cleese, commenting on the terms of his divorce from Alyce Faye Eichelberger.
Divorce, divorcing, divorced
So far as your (old or existing) will is concerned, you are married until your divorce is final. The decree nisi is not final. And lots of things can happen between talking about or filing for a divorce, and the final decree. It is prudent to make a new will as soon as possible after the decree absolute.
Destroying your will without making a new one at the same time is not a solution. If you merely destroy your will, you have no will at all - and intestacy will apply, benefitting your spouse. You remain married to each other until the decree absolute.
"Marriages have declined from 358,490 in 1950 to 267,961 in 2000. At the same time, divorce has become much more common, for example in 2001, 8.2% of the population were divorced, compared to 6.2% in 1991 and just 1.3% in 1971.
Re-marriage is also widespread, about 40% of marriages in 2001 being re-marriages for one or both parties."
Administration of Estates – Review of the Statutory Legacy, Consultation Paper CP 11/05 (7 June 2005)
www.justice.gov.uk/docs/cp1105.pdf
Divorce and inherited wealth: different kinds of money
A couple who divorced in 2011 had assets greater than £20 million, but a judge decided against a 50-50 split. Most of the money had been inherited by the husband, whose father left him several farms, huge tracts of land, a shooting estate, and other assets, including a substantial share portfolio. This money, the judge determined, was "non-matrimonial." The wife, who had £1m in her name, sought an additional £6m but was awarded slightly more than £3m.
In a separate 2011 case, a divorcing couple - Whaley v Whaley - had £10m in total assets, of which £7m were trusts that the husband had inherited. The husband argued that the trust money should be regarded as non-matrimonial, but a judge ruled that he had access to those funds and the wife was entitled to c.36% of their assets. The Court of Appeal agreed.
" . . . "
'He didn't mention marriage.'
'Why should he? But what else would automatically set aside an existing will unless he made a new one? Marriage cancels a will. Didn't you know that?'
'You mean that as soon as he married I should be disinherited?'
'Yes.'
'But that isn't fair!'
'Since when has life been noted for its fairness? It wasn't fair that your grandmother left her fortune to him instead of sharing it with you just because he's a man and she had an old-fashioned prejudice that women shouldn't own money.'
P D James, Death of an Expert Witness (1977)
