Will You, Wont You? When to Revisit Your Will

In Australia, almost 60% of adults have a Will and over 93% of people aged over 70 have a Will in place. However, having a Will does not always guarantee that your estate will be dealt with in accordance with your wishes. For instance, consider “Bob” – he prepared his Will 50 years ago, prior to his marriage, using a DIY will kit and has not looked at it since. Considering this example, Bob’s Will may not only be deficient but also invalid. In this article our Wills and Estates team look at the circumstances in which a person should revisit their Will, the effect of not updating a Will, and how to validly update a Will.

A Will sets out your directions and wishes for the administration of your estate, including the disposal of your property and assets, after your death. It is important to have a Will that records your current wishes so that your property and assets are distributed how you intend.

Therefore, it is crucial that a testator (being the person who made the Will) not only ensures that their current Will is valid but also regularly reviewed and updated to accord with their changing personal, financial, and familial circumstances.

CIRCUMSTANCES IN WHICH YOU SHOULD REVISIT YOUR WILL

A testator should review, and potentially look at updating their Will when any of the following events occur:

• Marriage – the testator gets married or enters into a de facto relationship;
• Divorce – the testator separates or divorces from their spouse (including a de facto partner);
• Children – the testator has children or grandchildren that are born;
• Property – the testator acquires or disposes of assets or property (e.g. house, shares, or family heirlooms);
• Death or Incapacity – the death or loss of capacity of a person named in the Will;
• Insolvency – the value of the estate is such that the liabilities exceed the assets; and
• Other Life Events – any other event generally that may affect the testator’s Will.

How frequently a testator should review their Will depends on their individual circumstances. However, as a general rule of thumb, a testator should review their Will at least once annually and upon the happening of any of the above.

Where a testator fails to update their Will, there may be adverse consequences including the finding that they have died “intestate”.

WHY SHOULD YOU REVISIT AND UPDATE YOUR WILL

Under the Succession Act 1981 (Qld) (‘Act’), a person is said to have died intestate where they die without a Will. This may occur a number of ways, the most common being that a person did not make a Will during in their lifetime. Conversely, a person who has a Will in place can also die intestate where the Will is not valid or has been revoked.

A Will may be revoked a number of ways (intentionally or otherwise). For instance, a Will is automatically revoked where a testator gets married, except where the Will is made in contemplation of the marriage. Additionally, where a Will does not comply with the formalities set out under the Act, the Will may be invalidated.

Dying without a Will is not only a difficult process for a person’s family to manage but also a costly and time-consuming process. To administer the estate of a person who has died intestate or who does not have a valid Will, the executor named in the Will (if there is one) or a family member of the deceased must make an application to the court for Letters of Administration. Unlike applying for a grant of Probate, this process may take much longer and incur further expenses.

Finally, and perhaps most importantly, failing to review and update your Will may mean that your testamentary wishes are not carried out or that your intended beneficiaries do not receive what you have left them.

HOW TO UPDATE YOUR WILL

To update a Will, it is not simply a case of crossing out words or adding new words, and care must be taken to ensure that any amendments to the Will do not invalidate it. Accordingly, a new Will or codicil will always need to be prepared. Codicils however may not always be the best way to revise a Will depending on a person’s situation, especially where there are substantial changes to be made or multiple codicils already in place.

DIY Will kits are another fatal error that many people make. While it may seem like a cost effective and quick way to prepare a Will, these kits generally are not prepared to take into account your full circumstances, are often not completed properly (which may invalidate the Will) and are more frequently challenged.

For information about how you can validly update your Will see our recent article here.

RAMSDEN LAWYERS – HOW WE CAN HELP WITH REVISITING YOUR WILL

Legal advice and assistance should always be obtained when making changes to a Will to avoid inadvertently invalidating your Will and/or your wishes. Given a Will is arguably the most important legal document a person will create in their lifetime, it is crucial that professional advice and assistance is obtained before making any changes to your Will.

If you are seeking legal advice or assistance with your estate planning, Ramsden Lawyers can assist you. We are happy to arrange an obligation-free initial consultation to assist you in navigating the procedures set out under the relevant legislation for your circumstances.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.