Happily ever after? Why marriage revokes a will

Posted on By Liz Skinner
A young biracial woman is reading a paper and looking at a laptop in a kitchen

If you’re preparing for your wedding or registering your civil partnership, then congratulations! 

Almost certainly the last thing on your mind, as you’re discussing menu plans, flowers, etc. is your will or testament. But the succession rules of England and Wales may surprise you. Getting married or registering a civil partnership revokes any prior will you may have.

There is an exception to this rule. You can do your will in advance, and state that the will is ‘in contemplation’ of the marriage/civil partnership. Then your will remains valid, even if the marriage doesn’t actually take place.

Alternatively, you can specify that your will is ‘conditional upon’ your marriage happening, which might be handy if you want to cater for the possibility of someone getting cold feet and calling the whole thing off. After all, you might not want your will to pass assets to your intended, if they’ve just jilted you at the altar!

Does it matter if my will is revoked?

If your marriage has just revoked your will, it means the intestacy laws apply if you were to die.  These may not be in line with your wishes.

Under these laws, if you have no children, then your new spouse is entitled to everything you own.

If you have children, your spouse will get all of your assets worth up to £322,000. If your estate is worth more than £322,000, it will be divided between your spouse and your children:

    • Your spouse gets all your personal belongings, £322,000 in assets and half the rest
    • Your children get the other half share above £322,000. If any of your children have died before you, their children will inherit in their place.

An important note: The intestacy rules only recognise biological or adopted children. That means step-children and foster children don’t inherit.

Capacity and ‘predatory marriage’

Automatic revocation of a will upon marriage is becoming contentious. There are numerous examples of elderly people who sadly no longer have capacity to make a new will. 

But many people aren’t aware that there are different levels of legal capacity, depending on what you’re doing. So, the ‘amount’ of capacity needed to get married is lower than the level of capacity needed to give instructions for a new will.

This means someone may have sufficient capacity to marry, which automatically revokes their will, but insufficient capacity to do a new will afterwards.

If you’re one of the beneficiaries of that old will, which was automatically revoked, you may not be too happy to learn the new spouse will inherit (perhaps everything) under the intestacy rules.

Concerns about ‘predatory marriages’, where elderly or vulnerable people are persuaded to marry someone they’ve only recently met (for example a carer or neighbour) are increasing. This is putting the automatic revocation of wills on marriage under the spotlight. 

After all, there’s an argument that if someone doesn’t have capacity to make a new will, they equally don’t have capacity to revoke their existing will. Which rather begs the question of whether it’s right for the laws of England and Wales to revoke someone’s will automatically upon their marriage.

Pending any change of the law, however, this is one rule to be aware of.

Jo Summers TEP, Partner, Jurit  

Top seven tips for choosing who writes your will

Posted on By Liz Skinner
A young biracial woman is reading a paper and looking at a laptop in a kitchen

It is essential to think carefully about who you choose to write your will. There are some simple steps that anyone can take when deciding whom to trust with writing their will or managing their assets:

1. Check their credentials. Although anyone can write a will, there are some factors you can check that your will writer has to give you peace of mind.

These include:
• Specialist accreditations: are they a member of STEP (a full member can use the letters ‘TEP’ after their name) or another reputable specialist body, such as the Law Society’s Wills and Inheritance Quality Scheme or the Institute of Professional Willwriters?
• Qualifications: Do they hold any specialist qualifications such as STEP’s Advanced Certificate in Will Preparation or the STEP Diploma?
• Have they told you who regulates them and which relevant professional bodies they are members of? You should be able to verify their credentials by searching a published register on the body’s website.
• How much experience do they have in this specialist area? Is the person who takes your instructions the same person who will draft your will? If not, why not? Are they supervised by someone?
• Insurance: Do they have professional indemnity insurance (PII)? PII protects consumers and provides cover for the advisor for potential claims from clients.
• Terms of Business: Have they given you a contract that sets out the service they will provide for you? Are the costs transparent? This may also be called an ‘Engagement Letter’. Costs should be confirmed in writing and where applicable include VAT and disbursements.
• Complaints: Have they told you who you can complain to if something goes wrong?
• Ethics: Are they signed up to an ethical code?

2. Shop around. Just as you would get more than one quote for any major purchase, it is worth getting a second or even a third opinion for your will. This is particularly important if you feel under any pressure from an advisor to give them your business. A reputable advisor will respect your decision to do this.
Remember your will is also covered under the Cancellation of Contracts Made in a Consumer’s Home or Place of Work etc. Regulations 2008. This should be explained to you.

3. Know the red flags. Has an advisor tried to scare you into using their service? Have they suggested that a solicitor will charge an extortionate fee? Have they knocked on your front door or approached you in a shopping centre? Are they preying on your vulnerabilities by suggesting you are saving your loved ones time and money when they will be bereaved? Does their website list the names and qualifications of their employees?

If you do not feel comfortable about how an advisor is communicating with you, it is a good idea to pause and consider if you want to give them your business. You might still choose to work with them once you have all the facts and have compared them with another provider. Do not be afraid to ask questions, trust your instincts and pause to discuss your decisions with your loved ones.

4. Beware of false promises about avoiding care home fees. Many people understandably wish to protect the family home from being sold to pay for care fees. If an advisor promises you that they can do this, beware. It is unlikely that any anyone can guarantee this. It can cause problems later with a local authority if you have tried to hide your assets.

5. Read the small print. We have heard from families where their loved one chose a will-writing service without realising that the firm chosen would take a large cut of the estate by acting as an executor and undertaking the estate administration or appointing a third-party firm. The estate pays these professional fees before the beneficiaries receive anything. It is unlikely that a very small or very simple estate will need a professional administrator.

6. Do not be put off by legal terminology that you do not understand. A reputable provider will be happy to explain it to you. They will also listen to your concerns if the first draft does not accurately reflect your wishes, or if it contains spelling errors etc, and will amend without a charge.

7. Find a STEP member in your area who specialises in writing wills.

You can search our Directory here for someone who specialises in writing wills in your area.

You can also find a wealth of useful information on this website.