Effect of divorce on gifts to, and appointment of, a former spouse (Wills Act 1837 s.18A)
In 2018 Kwame made a will appointing his wife, Esi, as sole executrix and leaving his whole estate 'to my wife Esi, but if she dies before me, to such of my children as survive me in equal shares'. The will contains no other relevant provisions. Kwame and Esi divorced in England and the final order was made in 2025. Kwame died in 2026 without changing his will, survived by Esi and by their two adult children.
Which of the following best describes the effect of the divorce on Kwame's will?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: Esi is treated as having died on the date of the final order, so her appointment fails and the estate passes to the two children equally.
THE RULE TO REMEMBER
On divorce or annulment, unless the will shows a contrary intention, the former spouse is treated as having died on the date of dissolution for both appointments and gifts in the will.
Effect of divorce on gifts to, and appointment of, a former spouse (Wills Act 1837 s.18A)
Section 18A(1) Wills Act 1837 applies where, after a will is made, the testator's marriage is dissolved by a court in England and Wales. Unless the will shows a contrary intention, any appointment of the former spouse as executor or trustee takes effect 'as if the former spouse had died on the date on which the marriage is dissolved', and any property left to the former spouse 'shall pass as if the former spouse had died on that date'. The divorce does not revoke the will as a whole. Esi is therefore treated as having predeceased Kwame: her appointment as executrix fails, and the substitutional gift 'if she dies before me' operates, so the estate passes to the two children equally. Because Esi is deemed to have died, the condition in the substitutional gift is treated as satisfied. Esi may still apply for provision under the Inheritance (Provision for Family and Dependants) Act 1975 if she has not remarried (s.18A(2)).
Why A is wrong: Divorce does not revoke the will; s.18A only treats the former spouse as having died for the purposes of appointments and gifts to her.
Why B is wrong: Section 18A expressly changes the effect of the will on dissolution of the marriage, removing the former spouse's appointment and gift.
Why C is wrong: Since the 1995 amendment, the former spouse is treated as having died on the date of dissolution, so a substitutional gift conditional on her predeceasing does take effect.
Why D is wrong: Section 18A(1)(a) applies to the appointment of the former spouse as executor as well as to gifts to her.
A little more practice done.
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