Drafted Will before divorce: Invalid?

Nilesprice

Hi All, my late Dad drafted his last will whilst he was married to my Mum. They divorced 8 years ago and he never updated his will. We submitted our application for probate and the probate department have come back and said unless there is a more recent Will we will have to withdraw our current application and resubmit and apply under intestacy as the current will is 'legally invalid'. Now I did plenty of research beforehand and everything I found says a divorce does not invalidate a will. It can change the spouses ability to I inherit etc but not completely invalidate the will. Have I missed something glaring?? I will never hear then end of it from my extended family as they all wanted to spend a fortune going down the solicitor route. TIA for your help!!

Alter_ego

If the probate office says it's invalid it's very likely to be invalid

Nilesprice

Alter_ego said:

If the probate office says it's invalid it's very likely to be invalid

That would be the logical assumption but any idea why? Every single search online and on the Gazette confirms divorce does not invalidate a will. There are no glaring 'divorce' clauses in the will ...

p00hsticks

My (non-expert) understanding was that divorce does not automatically invalidate a will - but I guess it may depend on the exact contents. For example, if the pre-divorce will left everything to the spouse and also named the spouse as executor, then the divorce means that they can no longer either inherit or act as an executor so the estate is in effect intestate.

Alter_ego

Did he remarry? That would invalidate it.

Nilesprice

Alter_ego said:

Did he remarry? That would invalidate it.

No.

p00hsticks said:

My (non-expert) understanding was that divorce does not automatically invalidate a will - but I guess it may depend on the exact contents. For example, if the pre-divorce will left everything to the spouse and also named the spouse as executor, then the divorce means that they can no longer either inherit or act as an executor so the estate is in effect intestate.

The Will does state that my mum should be primary executor and inheritor. It also lists a series of people who should act as executor and inherit should my mum die  (I am next to inherit after my mum). From all the advice I have read online/Gazette/here it states my mum should be treated legally as if she had died (on the date of the divorce). Hence I would be next inline.

Keep_pedalling

Alter_ego said:

If the probate office says it's invalid it's very likely to be invalid

Although people do make mistakes and I one has been made here. I would contact the probate office and ask exactly why it is invalid. I would also not let on to the extended family it is none of their business.

Malthusian

The obvious explanation, apart from the Probate Office making a mistake, is that the Will is invalid for another reason. E.g. it wasn't properly witnessed. Based on the OP's post, the Probate Office didn't actually say why it was rejected, and I agree the only real option is to ask for an explanation.

I am wondering if the "order of succession" was somehow badly drafted but that's complete speculation on my part.

I will never hear then end of it from my extended family as they all wanted to spend a fortune going down the solicitor route

To echo Keep Pedalling, I cannot see how it is any of their business, unless by extended family you mean he had other children and direct descendants who were cut out of his Will in your favour. (But would inherit under intestacy.)

If there aren't any, either you inherit everything under the Will or you inherit everything under intestacy. What skin is it off their nose if you waste a bit of time filling in the wrong forms while trying to claim your inheritance?

Marcon

Nilesprice said:

Hi All, my late Dad drafted his last will whilst he was married to my Mum. They divorced 8 years ago and he never updated his will. We submitted our application for probate and the probate department have come back and said unless there is a more recent Will we will have to withdraw our current application and resubmit and apply under intestacy as the current will is 'legally invalid'. Now I did plenty of research beforehand and everything I found says a divorce does not invalidate a will. It can change the spouses ability to I inherit etc but not completely invalidate the will. Have I missed something glaring?? I will never hear then end of it from my extended family as they all wanted to spend a fortune going down the solicitor route. TIA for your help!!

Possibilities as already suggested above:

• Probate Office has made a mistake
• The will is invalid for a reason other than the divorce of your parents

Go back to the Probate Office and ask them to be specific about why the will is 'legally invalid', citing the link https://www.thegazette.co.uk/all-notices/content/103393 and drawing their attention to the relevant paragraphs on divorce.

Nilesprice

Malthusian said:

The obvious explanation, apart from the Probate Office making a mistake, is that the Will is invalid for another reason. E.g. it wasn't properly witnessed. Based on the OP's post, the Probate Office didn't actually say why it was rejected, and I agree the only real option is to ask for an explanation.

I am wondering if the "order of succession" was somehow badly drafted but that's complete speculation on my part.

I will never hear then end of it from my extended family as they all wanted to spend a fortune going down the solicitor route

To echo Keep Pedalling, I cannot see how it is any of their business, unless by extended family you mean he had other children and direct descendants who were cut out of his Will in your favour. (But would inherit under intestacy.)

If there aren't any, either you inherit everything under the Will or you inherit everything under intestacy. What skin is it off their nose if you waste a bit of time filling in the wrong forms while trying to claim your inheritance?

Thanks a lot. So I called the probate office this morning and the Chap said that he's just a call centre worker and can't advise why the Will is invalid. That if I believe it needs to be challenged I need to instruct a solicitor to draft and submit a challenge formally.

In the off chance it helps, here's the exact email I received from the probate office:

Since the deceased got divorced after the Will was drafted, we need to check if they made any other Wills as the Will submitted is legally invalid. If the deceased drafted another Will, we will need you to submit the original copy with a cover letter quoting your case reference number .

If there are no other Wills you will need to email us on contactprobate@justice.gov.uk along with your case reference number  and withdraw this application. You will then be able to submit an intestacy application (PA1A) if you are the next of kin. Should you have any other questions please do not hesitate to contact us. (LOL!)

From my reading of the above, it very much implies the divorce is why the Will is invalid. If it was for any other reason why mention the divorce? The only other thing I can think of is all the named executors (95+ and in a nursing home) have renounced or not legally capable of executing the Will (my mum). But again surely that wouldn't invalidate a Will:

(https://www.thegazette.co.uk/all-notices/content/103585)

However, if there is only one named executor and they pass away, or all executors pass away, the The Non-Contentious Probate Rules 1987 (NCPR) determine who is entitled to obtain a ‘grant of letters of administration with will annexed’.

It should be noted the order of persons entitled in this situation are different to the rules of intestacy.

Myself and my sister are joint sole beneficiaries but she would much rather pay £10k+ and not have to deal with complicated matters. The estate itself is very straightforward hence I'd like to try manage it myself. 
 

Marcon

Nilesprice said:

Malthusian said:

The obvious explanation, apart from the Probate Office making a mistake, is that the Will is invalid for another reason. E.g. it wasn't properly witnessed. Based on the OP's post, the Probate Office didn't actually say why it was rejected, and I agree the only real option is to ask for an explanation.

I am wondering if the "order of succession" was somehow badly drafted but that's complete speculation on my part.

I will never hear then end of it from my extended family as they all wanted to spend a fortune going down the solicitor route

To echo Keep Pedalling, I cannot see how it is any of their business, unless by extended family you mean he had other children and direct descendants who were cut out of his Will in your favour. (But would inherit under intestacy.)

If there aren't any, either you inherit everything under the Will or you inherit everything under intestacy. What skin is it off their nose if you waste a bit of time filling in the wrong forms while trying to claim your inheritance?

Thanks a lot. So I called the probate office this morning and the Chap said that he's just a call centre worker and can't advise why the Will is invalid. That if I believe it needs to be challenged I need to instruct a solicitor to draft and submit a challenge formally.

 

Rubbish. Complaints time! See https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service/about/complaints-procedure