Having a legally valid Will is important to ensure loved ones are protected and your assets are distributed in accordance with your wishes after your death.
However, writing your Will is only the start of the story. Once your Will is written it is essential that you regularly review it to make sure that it continues to reflect your personal circumstances - and that you update it when this becomes necessary.
Sometimes your Will is automatically cancelled
Some of the most important things to watch out for are the situations in which your Will is automatically revoked or specific bequests cancelled.
These situations can be complicated, and professional legal help is always recommended, but in very general terms they include:
• If you have made a Will and then subsequently get married, your Will is normally revoked unless it was made 'in contemplation of a specific marriage'.
• If you have a Will and then get divorced, any bequests to your former spouse will be cancelled.
• A divorce also acts to cancel the appointment of your former spouse as executor, trustee or guardian under your Will.
It will not, however, cancel their appointment as trustee for any property that has been left in your Will to children you and your former spouse had together.
In addition, if at any time you make a new, full valid Will, it will automatically replace any Will you previously wrote.
Situations when updating your Will is a good idea
There are a number of key life changes that mean you should think seriously about updating your Will. These include:
• Getting married – as your previous Will will no longer be valid.
• Separating or divorcing - you should make sure that your Will reflects your new needs. Some bequests and appointments in favour of your former spouse will be cancelled on divorce – but not on separation.
• If you enter into a de-facto relationship (living together).
• If you have children or become grandparents.
• If your children remarry or divorce or have extended families – you may want to make sure that the only people who can inherit from your estate are those directly related to you.
• When your minor or adult child has a physical or mental disability which could mean that he or she is unable to manage substantial amounts of money on his / her own account.
• If your spouse dies.
• If a beneficiary who is named in your Will dies.
• If your named executor falls ill or dies, or is no longer mentally competent.
• If you acquire or dispose of significant assets. For example, your Will may specify that someone be left a specific asset. If you subsequently sell that asset, you will need to update your Will.
• If you become, or cease to become, a member of a superannuation scheme.
• The changing value of legacies. What may have seemed like a significant monetary bequest when you wrote your Will twenty years ago may not be worth so much in today's money. If your Will was written a long time ago, you may wish to revise the amounts of any specified bequests.
How to change a Will
You can change your Will at any point during your lifetime, as long as you continue to have testamentary capacity (the mental capacity to understand the consequences of the changes).
There are a number of accepted ways of making legally valid changes to a Will – it is not sufficient to simply score out a section of your Will and write something else beside it.
If the changes to be made are relatively minor, then this can be done by adding a codicil to your Will. This is a separate document that details the changes, and is signed and witnessed in a similar way to the signing of the Will itself.
However, the use of codicils, particularly if there are several over time, can increase the risk of confusion over your exact wishes, and increase the chance of a challenge to your Will. Therefore, in most cases it is preferable to prepare a whole new Will to take the required changes into account.
Peace of mind
Making sure that your Will stays up-to-date needn't be an onerous task and will reassure you that the arrangements you have put in place for after your death are effective and fully representative of your wishes and circumstances.
Szabo & Associates Solicitors offers a comprehensive service drafting Wills and Estate Planning. We recognise that people's circumstances regularly change and so we offer a regular review service to help you ensure your Will is kept accurate and up-to-date.
Contact us
If you are thinking of making or updating a Will then contact Szabo & Associates Solicitors today and speak with one of our specialist solicitors. Call us on (02) 9281-5088 or fill in the contact form to the right of this page.