A Will is one of the most important documents you will ever sign, primarily because it ensures that your assets pass to your chosen beneficiaries. Making a Will, or updating an existing Will, is therefore essential, but even more so if you are separated or are in the process of divorcing.

When divorcing, your estranged spouse will still be entitled to inherit your estate under the terms of your Will if it states that you wish to leave everything to them. This is because, legally, until a decree absolute is granted (the document that legally ends your marriage), they remain your spouse. Similarly, if you have not made a Will, your spouse will inherit a significant proportion of your estate under the rules of intestacy in the event you die before your divorce is finalised. This also applies if you are separated and have not yet instigated divorce proceedings.

Unfortunately, we see this situation arise far too often. For example, we were recently instructed on a matter concerning a couple who had separated and, although they had not been in contact for several years, had never actually divorced. Sadly, the deceased had not updated his Will during the period of separation and as a result, the surviving (estranged) spouse was entitled to inherit a significant sum from the estate. Similarly, we have also acted in a situation where a couple were in the process of divorcing, but the decree absolute had not yet been granted. One of them died during this period without having changed their Will, which left everything to the surviving spouse. The surviving estranged spouse will now inherit the entire estate as per the terms of the Will. Clearly, this would not have been the intention of the deceased in either case.

These cases are often subject to a subsequent challenge to the validity of the Will or a claim against the estate by the beneficiaries (usually the children or the parents of the deceased) who wish to assert their rights over the estate in preference to the surviving spouse. This can incur significant costs and delay in administering the estate, not to mention the inevitable breakdown of family relations. Subject to the facts of the situation, there is often no guarantee that a claim against the estate will be successful and the estranged spouse may still end up inheriting everything. It is vitally important therefore to take legal advice on your position in this respect before embarking on litigation.

This can all be avoided by the simple process of making a Will or updating your existing Will to ensure that it reflects your current circumstances.