Here’s the scenario: you’re a person who is clued up on legal and financial matters and you’ve made sure that even though there’s a heady feeling in the air with your wedding approaching, you’ve made a will and so has your intended, and ensured that each future spouse can take care of everything in the event of each other’s demise. That box is all ticked. Your pensions are sorted out, the house is sorted out. All that is needed now is for the glorious day itself and the cake and champagne afterwards.
Fast forward a couple of years. It’s been wonderful, all that you’ve ever dreamed of, until that chilling call that suddenly leaves you widowed. Of all the things you are worried about, legal matters are not one of them – as you both had wills. Wills made before marriage.
What’s the problem with wills made before marriage?
Here is where you need to be sure that, if you do have wills before marriage, you must do one of two things: either
- Ensure that your pre-marriage will is drawn ‘in contemplation of marriage’ or
- Review and alter your wills after the marriage has taken place.
In England and Wales, the law on wills is that marriage invalidates a will UNLESS it was strictly drawn and stated within it that it was in contemplation of the subsequent marriage. Therefore, those wills that you had which were not drafted on that basis are now null and void and your spouse’s estate is not subject to a will, but to the intestacy rules.
Now, it may be that the net effect is that you will still inherit under the intestacy rules, but these days there are a lot of blended families with children of previous partners, property that is held jointly with others and those sorts of issues. Under intestacy rules, you may not be entitled to the full estate of your spouse if there are children involved. You may have specified in your pre-wedding wills that there are certain funeral arrangements that you or your spouse wish to take place. But there is no guarantee that any other family members will allow that. All too often intestacy means that every member of the family, or families where previous marriages are involved, has an idea of what the deceased would want to happen. Without a valid will there is no certainty, and small disagreements at a time of bereavement can quickly escalate.
If you both died, that is even more of a problem as there are then two estates to be dealt with by intestacy. Any legal action that is necessary will mean a cost to the estate(s) of the deceased. Any beneficiaries would lose out on their inheritance and, depending upon what you actually wanted to happen to your estate in terms of gifts and legacies, may not get any inheritance at all. Additionally, there may be family members that you never meant to inherit due to estrangement or other circumstances, but under the intestacy rules they may be entitled. At the end of the day, the best way to ensure that your wishes are carried out after your death is to make a valid will.
So, what should you do?
At the very least you should review your wills after marriage. Have wills drafted if you don’t have any, or have your previous wills reviewed to ensure that what you want to happen after your death is what is actually going to happen. Regardless of whether amends are required, wills should be reviewed every 5 years too, as circumstances change.
If you have made a will in contemplation of marriage, then that should still be valid and no changes will be needed. It must have been drawn carefully in contemplation of your particular marriage and not just a marriage in general, and will usually state the date of marriage or at least the year.
Is it worth your while to make a will prior to marriage if you then have to change it on marriage?
Yes. it’s definitely worth having a will at any time if you have any property, children or investments, or simply if you wish to ensure that your wishes are carried out. If you are making the will intending to marry fairly soon, make it in contemplation of marriage and it will be in place until your next review.
To be sure you are protected, contact us at SHL Solicitors for advice on your will or to draft a will if you do not have one. We are happy to advise you as to the best way to protect your assets and to ensure that your wishes are carried out.