Probate Application: Ex-wife still on will

Nilesprice

Hi All, my Dad recently passed away and his latest will was written whilst he was married. He divorced 5 years ago. His ex-wife is listed as first executor and all the others have since died. As his ex-wife cannot apply for executorship (following the divorce) I'm not really sure if I need to list her as 'an executor not applying'. If i do list her i need to provide a pre-defined reason why she isn't applying and divorce isn't listed. I could list her as dead as that is how she is treated legally? Seems a bit odd. I've called the probate hotline multiple times but they all tell me the ex-wife is entitled to apply for executorship which all my research online says contrary. 

Extract from the application is below:
Name any executors who are not making this application, and explain why. Reasons for executors not applying:
A – They died before the person who has died.
 B – They died after the person who has died (Please include the date they died by their name).
 C – Power reserved: they have chosen not to apply, but reserve the right to do so later.
D – Renunciation: they have chosen not to apply, and give up all rights to apply. (Before you send off your application please read NOTE REASON D)
E – Power of attorney: they have appointed or wish to appoint another person to act as their attorney to take a Grant of Representation on their behalf (You will also need to complete Section 5 of this application). (Before you send off your application please read NOTE REASON E)
F – They lack capacity to act as executor.

Many thanks in advance!!

Flugelhorn

What Happens to My Will after Divorce? (co-oplegalservices.co.uk)

Might need to ask these people - they say the same as others, that the executorship  is revoked 

"Other problems could arise if you’d named your ex-partner as an executor in your Will or granted them Lasting Power of Attorney. Both appointments will be revoked and you’ll need to make other arrangements."  (from another site) 

 

Nilesprice

Flugelhorn said:

What Happens to My Will after Divorce? (co-oplegalservices.co.uk)

Might need to ask these people - they say the same as others, that the executorship  is revoked 

"Other problems could arise if you’d named your ex-partner as an executor in your Will or granted them Lasting Power of Attorney. Both appointments will be revoked and you’ll need to make other arrangements."  (from another site) 

 

Thanks Flugelhorn, I'm 98% sure executorship is revoked. Would have thought it's much more common issue/problem. I guess I still don't know what to put on the application and don't really want to shell out for advice on completing a form. Might try squeeze it out of co-op or other service for free/low price. 

JGB1955

Google seems to indicate that the ex-wife is considered to have 'died', with the date of death being the date of decree absolute.  So, I would opt for 'A'.

EasySolution

Approved practice is to State "A" the after their name put    "(Divorced)"

Nilesprice

EasySolution said:

Approved practice is to State "A" the after their name put    "(Divorced)"

Amazing, I'll do this. Many thanks!! 

Marcon

Bit worrying that the probate hotline is giving you that answer. The Gazette (https://www.thegazette.co.uk/all-notices/content/103393) would seem to be a suitably authoritative source:

Dying with a will made during marriage and before divorce

In England and Wales, if a person gets divorced, ie once the decree absolute is granted, then any will they have already made is NOT automatically revoked by the divorce. It exists and is still valid. However, the effect of the divorce does change the way the former spouse is treated in law.

These changes affect any gifts to the surviving spouse or the appointment of them as executors under the existing will. This is because in law, an ex-spouse is, on divorce, treated as having died before the deceased, so any gifts to that ex-spouse as a beneficiary fail and so does any appointment of them as executor.

TBagpuss

Yes, I am surprised that the probate hotline are giving incorrect information and that the form doesn't provide for this possibility. 

Relevant Law is s1A of the Wills Act (as Amended) https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/18A, so you can be 100% sure instead of 98%! 

Nilesprice

Marcon said:

Bit worrying that the probate hotline is giving you that answer. The Gazette (https://www.thegazette.co.uk/all-notices/content/103393) would seem to be a suitably authoritative source:

Dying with a will made during marriage and before divorce

In England and Wales, if a person gets divorced, ie once the decree absolute is granted, then any will they have already made is NOT automatically revoked by the divorce. It exists and is still valid. However, the effect of the divorce does change the way the former spouse is treated in law.

These changes affect any gifts to the surviving spouse or the appointment of them as executors under the existing will. This is because in law, an ex-spouse is, on divorce, treated as having died before the deceased, so any gifts to that ex-spouse as a beneficiary fail and so does any appointment of them as executor.

TBagpuss said:

Yes, I am surprised that the probate hotline are giving incorrect information and that the form doesn't provide for this possibility. 

Relevant Law is s1A of the Wills Act (as Amended) https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/18A, so you can be 100% sure instead of 98%! 

Yes, very worrying indeed as I called twice thinking maybe the first time was a blip Thanks again both.