Report No. 110

IV. Effect of Divorce

15.24. Divorce.-

We may, at this stage, take up the question of the effect of divorce on a will. While, by section 69, a will is deemed to be revoked by the marriage of the maker, there is no similar provision in relation to divorce of the maker of the will.1 The matter seems to require examination, particularly because divorce is now much more common than it was before.

Marriage is regarded as relevant to the continued subsistence of the will, in as much as it introduces in the life of a man or woman a new person who is going to be an equal partner in life. On the same logic, divorce should be regarded as equally relevant, because it removes from his or her life, a person who was, so far an equal partner in life. Annulment of marriage also stands on a similar footing for this particular purpose.

1. As to birth of a son after execution of a will, see para. 15.31, info.

15.25. Present law.-

Under the present law, of course, the general rule is that the subsequent divorce of a testator will have no effect on his will, unless he has made an express provision for that contingency. Recently, however, the lack of any rules in this area has been criticised in many countries.1

In England, there is no provision for the automatic revocation on a subsequent marriage. So, it is only if the testator either marries again, or has made the gifts in his will conditional on widowhood, that the former wife is barred from taking her interest under the will. The question is: Should the law automatically revoke gifts to former spouses on the assumption that the majority of testators would wish to disentitle them, or should the law remain as it is and leave it to testators to expressly revoke such testamentary disposition?

1. G.M. Bates Revocation of Wills on Divorce, (7th June, 1979) 129 NLJ 556, 557.

15.26. Case for reform.-

There certainly seems to be plenty of evidence that in the majority of cases the law would best serve the interests of testators by revoking provisions to former spouses.1 Take, for example, the case of a testator who has been divorced from his former wife twenty years earlier at the time of his death. If he has not altered his will, the whole estate would (on his death) pass to the former wife, though this could not be his intention.

1. G.M. Bates Revocation of Wills, (7 June, 1979) 129 NLJ 556, 557.

15.27. Assumption about testator's intention.-

The present law unrealistically assumes that a divorced testator would still wish to benefit his ex-spouse, no matter how long it is since they separated. This would surely not be the testator's intention in the majority of cases where, in the emotional stress of a divorce, the will is often forgotten. In the absence of a conscious testamentary disposition, and bearing in mind the increase in the rate of divorce, and the unavoidable emotional turmoil of such proceedings, the law should step in to reflect more adequately, the wishes of the vast majority of testators.

The present assumption should, therefore, be reversed and some form of statutory revocation of testamentary gifts on divorce should be provided. There will, of course, be exception, and provisions could be made for these by permitting evidence of, say a later memorandum or codicil confirming the will or even of extrinsic evidence of surrounding circumstances. But in most cases testators would not wish to benefit ex-spouses once they are divorced.

15.28. Alternatives open for reform.-

Given that there is a need for law reform in this area, then the next question to consider is, how this should be done.

15.28A. Alternatives for reform.-

There are basically three ways in which reform of the law might be effected, all having, in practice, different consequences.1

(1) Providing for an automatic revocation of a will or divorce, in the same way that a will is generally revoked on marriage.

This solution, however, goes too far, (since the effect would be to revoke not only all dispositions in favour of an ex-spouse, but also specific gifts to all other beneficiaries. Such a result would probably not reflect the testator's true intentions. Legacies to children, friends or charities, would probably be intended to survive the divorce, and to strike down the whole will would probably cause more hardship and injustice than the present law.

(2) Provision that where a testator has subsequently divorced his wife, then only gifts to her alone in the will shall be void.

The difficulty with this alternative is that problems would arise where the gift to the wife contains an alternative provision in case the wife predeceases the testator. The alternative substitutionary gift would also fail, and the subject-matter would then be distributed as on intestacy.

Further, such a provision can deal only with beneficial interests. There is no reason to believe that a testator would wish to retain an ex-wife, as say, executor or trustee, any more than as a deserving beneficiary.

This solution can be supported only if it is made clear that the revocation of gifts to an ex-spouse will not defeat substitutionary gifts.

(3) Provision that where a testator is subsequently divorced, his will shall be read as if his former spouse had pre-deceased him. This would avoid the difficulties foreseen in the 'first two alternatives. No doubt, if the ex-spouse is also named as an executor, t7,7tis solution might interfere with the due administration of the estate. But an al.)-,erriative administrator can be sought.

It may be that such a solution could adversely affect (i) secret trusts accepted by the wife; (ii) devises to beneficiaries given pur autre vie, where the other life is that of the divorced spouse; and (iii) alternative provisions in the will to cover a situation where the wife predeceases the testator. Other problems might arise in the rule of perpetuities, where the divorced spouse is a measuring wife, and with regard to the acceleration of gifts.

However, it might create less difficulties than other solutions. It may, therefore, be preferred.

1. G.M. Bates Revacation of Wills, (7th June, 1979) 129 New LJ 556, 557.

15.29. Recommendation to insert new section 69A.-

In the light of the above discussion, we recommend that the Succession Act should be amended to provide that where after a will the marriage of the testator is dissolved or his (or her) marriage has been annulled, the will should for all purposes, be read as if the former spouse (that is to say, the spouse whose marriage is dissolved or annulled) had died before the testator, unless the will expressly provides otherwise. A new section should be added to carry out the above subject.1

1. Section 69A to be added; see para. 15.32, infra.

15.30. Provision in form Probate Code.-

In this connection, we may refer to the provision in the Uniform Probate Code.1

"Section 2-508. Revocation by Divorce: No Revocation by other changes of circumstances. If, after executing a will, the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise.

Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the descendant, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the descendant. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse.

For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse within the meaning of section 2-802(b). A decree of separation which does not terminate the status of husband and wife is not a divorce for purpose of this section. No change of circumstances other than as described in this section shall revoke a will."

1. Section 2-508, Uniform Probate Code, reproduced in Martindale Hubble Law Directory, Vol. 7, p. 430.

15.31. Move for reform in England.-

It may also be mentioned1 that in England, the problem was considered by the Royal Commission on Marriage and Divorce,2 which thought that a substantial proportion of those spouses who have made a will in favour of the other spouse would not wish that spouse to receive a benefit if that marriage was subsequently dissolved.

A testator may be unable to alter his will after divorce, because he lacks mental capacity. The Royal Commission, therefore, considered it desirable that, on the death of a person whose marriage has been dissolved, his former spouse should not take any benefit under his will unless it is clear that he desires her to take a benefit notwithstanding the divorce.

They suggested two ways in which this result could be achieved. It could either be provided that divorce revokes a will just as marriage revokes a will, so that the testator (unless he makes another will) would be regarded as dying intestate. The objection to this approach was that it revoked a will whether or not it conferred any benefit on the former wife, and it might defeat gifts to another person. They preferred the second possibility, which is similar to the provision in the Uniform Probate Code.3

This would invalidate, on divorce or nullity, a bequest to or appointment in favour of the former spouse, but would leave the will to take effect in all other aspects. No action has been taken in England on these proposals, but some Commonwealth jurisdictions have introduced, or are in the course of introducing, provisions to deal with the problem.4

1. Miller Machinery of Succession, (1977), p. 183.

2. The Modren Commission, (1953), Command 0678, paras. 1187-1191.

3. Section 2-508, Uniform Probate Code. See Martindale Hubbell Law Directory, Vol. 7, pp. 4302, 4303.

4. New Zealand and Queensland.

15.32. Recommendation to insert section 69A.-

Having given our careful consideration to the matter, we are of the view that, for reasons already stated,1 there is need for inserting a specific provision as to the effect of divorce on wills. We recommend the insertion of a new section (section 69A) somewhat on the following lines:-

"69A. (1) Where, after making a will, the marriage of the testator is dissolved or has been annulled, the will shall, for all purposes be read as if the former spouse (that is to say, the spouse whose marriage is dissolved or annulled) had died before the testator, unless the will expressly provides otherwise.

(2) The provisions of this section shall, unless the will expressly provides otherwise, operate-

(a) to revoke all dispositions of beneficial interest in favour of the former spouse.

(b) to revoke provisions conferring a general or special power of appointment on the former spouse.

(c) to revoke provisions naming the former spouse as executor or trustee2 and

(d) to invalidate the appointment of the former spouse to act as trustee for a secret trust, established before the testator's divorce or before annulment of the marriage, as the case may be, so however as not to affect the subsistence of the trust.

(3) The provisions of this section apply to all wills of persons dying after the commencement of the Indian Succession (Amendment) Act, 19.

1. Paras. 15.24 to 15.28, supra.

2. This amendment is in addition to the amendment of section 69 on certain points, already recommended.