When couples separate our advice to them is always to prioritise making a new will.
Making a new will is not necessarily uppermost in people’s minds at such an emotionally turbulent time but if you don’t do it, you are at risk of your ex inheriting everything.
The importance of this message was brought home to me when reading the story of Michael and Rosita Hendry.
The couple married in 2003 after they met in the Philippines and Rosita flew to the UK.
When they wed, they signed a pre-nuptial agreement, which provided Mrs Hendry with £10,000 and a flight home if they were to separate.
The marriage did ultimately collapse and Mrs Hendry petitioned for divorce in 2016 seeking a 50-50 split, despite the pre-nuptial agreement, but during the divorce process Mr Hendry passed away.
Mr Hendry, however, had done what so many people fail to do, he had already had a new will drawn up cutting Mrs Hendry out of the will and leaving everything to his children.
Mrs Hendry demanded a half-share of her dead husband’s estate but lost a court battle with her stepchildren.
She did lodge a claim for reasonable financial provision from her husband’s estate but the claim was judged to have been made too late, being outside the time limit of six months from grant of probate.
The judge was satisfied that Mr Hendry’s wish was for his children to receive an equal half share of his estate. Having a clear will in place will certainly have given extra weight to his children’s case.
When couples separate, the financial upheaval can be as difficult to cope with as the emotional upset, so it is understandable that people can be reluctant to invest in a new will.
However, the expense and upset that not having a will can cause loved ones far outstrips this, which is why we always strongly advise people to make their wishes clear by asking a qualified solicitor to draft a new will for them
When deciding whether to make a new will the key points to bear in mind are:
- You remain legally married until the divorce process is completed, so if you have a will that names your spouse as beneficiary that will stand even though you may be separated.
- If you don’t have a will, your spouse will inherit from you under the rules of intestacy, regardless of how long you have been separated and up until the time that your divorce is completed, which can take many months.