Private Client
By Emma McCaul
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Importance of a Will During Divorce Proceedings

I am getting a divorce- should I make a will?

As soon as you make the decision to commence divorce proceedings, you should consider making a will or modifying and updated your will that is in existence. This will reflect any current changes you want to make in light of your decision to instigate a divorce.

Why is it important during divorce?

During divorce proceedings, the importance of making a will is often overlooked and forgotten about and it is often not considered a priority. A divorce is distressful and challenging enough without being concerned about a will. However, it is important to consider making a will, renewing your will, and/ or revoking your current will if there is one formed. This is paramount to avoid your assets unintentionally descending to your former spouse when you die. If you are separated from them, it is likely that you do not want to leave them any fundamental assets. The divorce process eventually terminates, and it is important to have your assets and wishes finalised when this happens.

Main reasons to create a will during divorce:

  1. property may go to your spouse;

  2. Your can name your beneficiaries;

  3. Designates a person to be guardian of your children if spouse predeceases you;

  4. Designates age at which beneficiaries can received inheritance from you. Without a will, this is usually the age of 18 and often times the beneficiary still maintains a degree of immaturity at this age. You can chose the age at which they can receive the inheritance.

  5. Designates person to oversee beneficiary’s inheritance.

What happens if I pass away before my decree nisi is granted?

If you pass away before your divorce is finalised, and you have not made a will, your spouse will receive everything especially if you do not have children. Even if at the time of your death you and your spouse are officially separated or commences divorce proceedings, your spouse has the right to inherit was a matter of law. This is documented under the rules of intestacy.

Even if you have received the decree nisi from the court, you are still legally and technically married until the decree absolute is received. There is approximately a 6-week period for this decree absolute to come through. Therefore, this is another essential reason to make a will during divorce proceedings.

I have a Will so I do not need to update it- what happens?

If you have a will and thereafter go through divorce, the terms of the will shall remain in place and will be effective until the final decree absolute is available. This essentially means that any assets, gifts, or simple wished you left to your former partner will still be applicable and will be transferred to them. This is the case, even if you are separated for many years and your will has not been updated, provided that your divorce has not come through.

However, once the divorce and decree absolute is final, it will be granted the effect as if your former spouse had passed away and no gifts or assets will be transferred to them upon your death.

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