The importance of making or reviewing your Will when you are going through a divorce was recently underlined in a case involving Nigel Vindis and Mari Vindis.

The couple had an almost 40 year marriage. A long one by any standards. The couple had lived apart for two years and had filed divorce papers only two months before Mr Vindis died in April 2013. Mr Vindis had made a Will reportedly leaving much of his estate to the couple’s two children, Gabriella aged 26 and Alexandra aged 28.

On divorce, it is quite likely that Mrs Vindis would have received a substantial share of her husband’s wealth certainly in the region of 40% to 50% bearing in mind the length of marriage and the fact that both would have contributed.

During the marriage the family lived in a substantial house and had a very good lifestyle with a Rolls Royce and holiday homes in Cornwall, Spain and France. Mrs Vindis now lives in Cornwall and earns just £11,000 per annum as a hypnotherapist. The reports say Mr Vindis’s Will did make provision for Mrs Vindis to have assets worth £1m but that included the half share that she already owned in three family properties.

Mrs Vindis is now faced with the unpalatable task of having to make a claim for a share of her late husband’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) for reasonable financial provision. This places Mrs Vindis in the unfortunate position of technically litigating against her own children.

Although the children are supportive of their mother’s claim to a degree her daughter has apparently said it would “drive a coach and horses through Mr Vindis’s wish to leave most of his wealth to his children”. According to newspaper reports there is also a further claim against the estate from her late husband’s siblings.

What does a couple going through a divorce need to think about in terms of making Wills and ensuring that their assets go the way they wish them to?

  1. Do seek legal advice and review your current Will if you have one
  2. Many couples own the family home which is often the main asset, as joint tenants. This means that if one joint tenant dies that person’s share passes to the survivor automatically irrespective of Wills or divorce. In many cases couples may wish to change the way they own the property to a tenancy in common which at least then means they are free to leave their share of the estate to someone other than the survivor of them both
  3. Be aware that if you make a Will leaving everything to someone other than your spouse that you are at risk to a large amount of your estate disappearing on legal costs as the dissatisfied party, particularly a former spouse and any dependent children, have a right to make financial claims against the estate under the Inheritance Act. This Act provides for the courts to award reasonable provision for certain categories of dependents which of course include former spouses and dependent children. Indeed even dependent adult children can succeed in making a claim if they have needs
  4. Be aware then that you should make a Will that is as fair as possible to your former spouse and children. Particularly if your children are still financially dependent
  5. NB VERY IMPORTANT Do remember that if you remarry your marriage will normally automatically revoke any existing Will. You need to bear that in mind if you wish to ensure that your former spouse and children inherit.

Margaret Hatwood family and private client partner at Anthony Gold says “I am frequently surprised when I discuss with divorcing clients whether they wish to sever their joint tenancies and make new wills. Many do not wish to do this. Realising perhaps that notwithstanding any difficulties their former spouse and children have to be the first priority.”