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17th November, 2021 by Jennifer Laskey
English law (oddly perhaps) provides that marriage revokes an earlier Will but a divorce does not. As a result, divorcing couples are quite properly advised to make a new Will when they contemplate a divorce to ensure that their wishes are expressed.
Whilst such actions will not prevent a claim by a spouse in the event of a death before a divorce is finalised, it can prove an important statement of how assets should be dealt with.
But what happens if you are already divorced and a settlement has been approved by the Court – can someone seek to look behind that once you have died?
The recent landmark case of Sismey v Salandron has had to consider just this issue. In that case the testator divorced his third wife in 2017 and that same year a divorce settlement had been reached. This had been counter-signed by the girlfriend of the deceased as evidence that she was aware of the terms of the Agreement.
Under the terms of the Agreement – approved by the Court – the testator agreed to leave his property by Will to his son from that marriage.
Two years later the testator was diagnosed with terminal cancer and made the decision to marry his girlfriend. It was accepted that in part this decision was made to enable her to draw widow’s benefits from his pension. In marrying his girlfriend, the testator revoked his Will by operation of English law. As a result, his girlfriend – now his fourth wife – stood to inherit his entire estate and his son from his earlier marriage would get nothing.
The son brought a claim to enforce the 2017 divorce agreement to ensure that he received his father’s property. The fourth wife defended the claim relying on the rarely used Section 11 Inheritance (Provision for Family and Dependants) Act 1975 and asking for an Order that reasonable financial provision be made for her. Section 11 applies where
Section 11 also provides that
“the court may exercise its powers thereunder in relation to any contract made by the deceased only to the extent that the court considers that the amount of any sum of money paid or to be paid or the value of any property transferred or to be transferred in accordance with the contract exceeds the value of any valuable consideration given or to be given for that contract, and for this purpose the court shall have regard to the value of property at the date of the hearing.”
In this case the Court found that the 2017 divorce settlement would be upheld. The testator had in fact received full valuable consideration for the transfer to the property to his son. Within the divorce proceedings it had been agreed that on the basis of the settlement terms reached, the testator’s third wife would not seek a pension sharing order which could have attached to his large pension.
The son duly brought a claim for enforcement of the 2017 divorce agreement. The widow counterclaimed under s.11 of the 1975 Act, asking for an order that the property be used to make reasonable financial provision for her, despite the existence of the Family Court approved divorce agreement.
Ultimately, the court upheld the deceased's son's claim and rejected the widow's s.11 claim, even though the judge had found that the 2017 divorce settlement was 'collusive' as between the divorcing husband and former wife and thus in principle could be overturned as unfair. However, the judge decided not to overturn the agreement on the grounds that the husband had received full valuable consideration for it, as it bought off the risk of a sharing order in respect of his large pension.
The fact that this matter had to be litigated is a cautionary tale for those who agree divorce settlement terms reliant upon a gift being left in a Will.
Partner Justine Flack, an experienced Family Law solicitor and head of the Family Law Team at Howes Percival acknowledges:
“Divorcing couples will sometimes agree that an asset will be left by Will. This is especially the case when it is agreed that an asset will be left to a child of the union but life events can result in there being problems in the future.
We avoid agreements that rely on a party making a Will on certain terms – it is far better to deal with the assets once and for all so that all parties have certainty and ultimate control over the assets they walk away from the marriage with.”
Jennifer Laskey, a Director in the Dispute Resolution Team at Howes Percival and a specialist Contentious Probate lawyer agrees.
“Avoiding a claim when someone dies will always be the ideal. There is distress in any event but the implications if a claim is made against an Estate can be huge and in almost all cases will not be what the deceased would have wanted. This case must give rise to the possibly that divorce settlements will be looked at again on a death but such cases will be rare. That said, if there was a strong case for an applicant to have to set aside an earlier divorce settlement or other contractual arrangement, Section 11 provides the means to do that.”
For more information contact the team here.
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