Irwin Mitchell Private Wealth | A cautionary tale - What to do when Wills are revoked by marriage or divorce

Wills are revoked by marriage or divorce and should always be kept up to date, especially when elderly people are losing capacity.

That is the lesson from a recent saga involving Mike, a 78-year-old diagnosed with Alzheimers, who remarried a 52-year-old divorcee less than a year after his first wife’s death.

He died seven months later, and under intestacy rules his widow and her daughter stand to receive 70% of his £1.25m estate. The three children from his first marriage will receive 30%, while a charity for which Mike had earmarked 10% will get nothing because his only Will was invalid.

Mike was diagnosed with Alzheimers in June 2016 and his wife Margaret failed to persuade him to put a Lifetime Power of Attorney in place. He said he did not wish to lose control of managing his affairs and had read horror stories about Attorneys making gifts to themselves.

Margaret suffered a stroke in April 2017 and died in May 2017. A stroke charity became involved and gave great support both to Margaret during her last few weeks and Mike after her death. Under Margaret’s Will her entire estate worth some £487,000 including joint assets went to Mike absolutely.

Mike made a homemade Will shortly after his wife’s death and provided for 90% of his estate to be distributed equally between his three children (aged 42, 45 and 49) with a 10% gift to the stroke charity.

In September 2017 Mike met Mary through a friend. When they were married in April 2018, comments were made about the 26-year age gap and there were also people concerned about Mike’s ability to make decisions.

In July 2018, Mike transferred a half interest in his house to Mary to hold as joint tenants, saying that this was so she would have the house to live in on his death. All other assets held by Mike were held in his sole name and they did not have any jointly held assets apart from the house.

Mike’s estate in August 2018 comprised of a half-interest in the house £240,000, a holiday home in Norfolk £305,000, bank accounts £170,000 and stocks and shares £540,000, total £1,255,000.

Mike died in November 2018 from a heart attack. At the hospital, Mary’s daughter Rebecca (31) spoke to Mike’s children a few hours after his death, asked how much their father’s estate was worth, and explained that her mother would be administering the estate in favour of herself as the main beneficiary.

The children later provided Mary with a copy of their father’s Will only to be told that the 2017 will had been revoked by their father’s marriage to her.

Mary applied for the Grant of Letters of Administration on the basis that she was entitled to administer the estate in accordance with the intestacy rules as the surviving spouse. Under the rules, Mary is likely to receive the half interest in the house (as surviving spouse) £240,000, the first £250,000 of the estate, half of the balance amounting to £382,500, and all personal possessions including family heirlooms. The children will receive £382,500, and the stroke charity nothing – unless the children wish to make a donation from their shares.

Mary meanwhile Mary had not updated her existing Will following her divorce in November 2016. She said a family friend had told her that her Will was still valid as her ex-husband had died.

But on Mary’s death, her Will is also revoked by the marriage to Mike. As long as no other Will is prepared prior to her death, her entire estate will be distributed in accordance with the intestacy rules. As Rebecca is Mary’s only surviving daughter, Rebecca is entitled to her estate on her death.

The outcome shows how a failure to take advice on powers of attorney, and on the validity of Wills, can create winners and losers when elderly and vulnerable people remarry.

Published: 23 January 2019

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