Validity of bequest

[fredpuli47]

John Smith wrote a valid will in these terms "I give to my wife Gladys Smith £50,000 and to my stepson James Jones I give the residue of my estate". He was divorced from his wife Gladys 25 years ago. He wrote no later will, he did not revoke this one and nor did he remarry.He has now died. Gladys lives on,since remarried, as does James.

Interpreting the will, is the gift to "my wife" of no effect because she was not his wife at the time of death? And on that, had he omitted "my wife" but just given her full married name would the position be different ?

[mike11111]

Years since I studied this, but would have thought that the bequest was perfectly valid; omitting the words "my wife" should make no difference. Unfortunately I can't provide any legal authorities to back this up as I lost all my notes ages ago.

[Barmaid]

Am I right in assuming he made the Will and THEN got divorced? If so s18A Wills Act 1837 will apply and Gladys is treated as having died on the day they were divorced.

[Buenchico]

It's irrelevant as to whether the wording 'my wife' was included or not. Upon divorce any specific gift under the will to the former spouse is added to the residue of the estate, so James gets everything. (If John had left the residue of his estate, rather than any specific gift, to Gladys, the residue would be distributed under the intestacy rules).

Chris

[mike11111]

You may be right Barmaid - have just looked it up (thank God for the internet). Would make an interesting exam question on Law of Property. I wonder if there is any case law which helps.

[fredpuli47]

My conclusion was the same as Barmaid's but without the benefit of statute! Must try that more often: "I'm sure there must be something but it's common legal sense anyway" LOL Yes, he made the will during the subsisting marriage but divorced after he'd made it , and without any provision that it was a gift absolute to her regardless of whether she was still his wife at the time of his death, which I assume he could, if eccentrically, do using " To be read as though the provisions of s18A of the Wills Act 1837 did not apply" or some such wording.

I always kept well out of Chancery (can't you tell?) .This was something I was asked casually and informally by a friend today.I didn't give an immediate opinion (People have been sued for less !)

[Peter Pedant]

and here boys and girls is the section in question:

18A.
Effect of dissolution or annulment of marriage on wills.
— (1) Where, after a testator has made a will, a decree of a court [F14 of civil jurisdiction in England and Wales] dissolves or annuls his marriage [F15 or his marriage is dissolved or annulled and the divorce or annulment is entitled to recognition in England and Wales by virtue of Part II of the M1 Family Law Act 1986] ,—
[F16 (a)
provisions of the will appointing executors or trustees or conferring a power of appointment, if they appoint or confer the power on the former spouse, shall take effect as if the former spouse had died on the date on which the marriage is dissolved or annulled, and
(b)
any property which, or an interest in which, is devised or bequeathed to the former spouse shall pass as if the former spouse had died on that date,]
(2) Subsection (1)(b) above is without prejudice to any right of the former spouse to apply for financial provision under the M2 Inheritance (Provision for Family and Dependants) Act 1975.


In my humble opinion, the common sense rule would be that Gladys gets it as she has been certainly defined in the will - GS, and there is certainty of material 50 thou knicker, and that is perhaps why they had the reform.