Forgot to update your will after your divorce? Your ex could still inherit.

Divorce, while undoubtedly difficult, is a common experience that many of us go through.  Amid the emotional turmoil and the seemingly endless checklist of tasks, there is one crucial undertaking that often gets overlooked: and that is updating your will.  This oversight can lead to unexpected consequences, especially when it comes to inheritance rights.

While section 2B of the Wills Act allows for a grace period to update your will after a divorce, this is limited to three months so you mustn’t wait too long to make amendments to your estate plan. Caitlin Moses, Candidate Attorney at specialist, commercial law firm Gillan & Veldhuizen Inc., explains,

“In the event that a person does not revoke or amend their will within three months from the date of divorce, their ex-spouse may still inherit according to the terms of the will, despite their legal separation.”

Here’s how it works: In the three month period after you get divorced, your ex-spouse is treated as though they died before you and they are therefore not entitled to receive any assets or property that you (as a testator) had intended for them to receive.   It’s important to note that this doesn’t affect the validity of the rest of the will, it is just designed to exclude an ex-spouse from inheriting in this particular three month period.

It’s important to understand that this three-month period acts as a brief hiatus to allow you time to update your will after a divorce. If the testator dies within three months from the date of divorce without updating a will which was executed prior to the divorce, the will is carried out as though the ex-spouse had died before the testator, preventing them from inheriting.

However, if the will was made after the marriage was dissolved or if the testator died more than three months after the divorce is finalised without amending their will, the protection of section 2B ends and their ex-spouse will go back to inheriting under the original terms of the will.

This rule is designed to give individuals time to revise their wills after a divorce.  “The best course of action is to review and update your will promptly after filing for divorce (and, indeed, after any major life changes) to avoid unintended outcomes and to ensure that your intentions are clearly reflected in your last will and testament,”  advises Moses.