A Will is a “living” document and should be reviewed regularly to ensure that it is up to date and remains consistent with your wishes. Typically, a Will should be reviewed every two or three years or whenever a major event occurs in your family or to your assets.
Remember that changes to the law may impact on your Will (particularly taxation law). In particular, you should consider updating your Will if any of the following occur:
If you change your name, or anybody named in the Will changes theirs;
If an executor dies or becomes unwilling to act as executor or becomes unsuitable due to age, ill health or any other reason;
If a beneficiary (someone who has been left something in the Will) dies;
If you have specifically left any property that you subsequently sell or give away or put in trust or into a partnership or which changes its character. This applies particularly to specifically bequeathed shares in a company that restructures its share capital;
If you marry or divorce; or if you have children (including adopted or foster children);
Your financial situation or your asset structures (trusts or companies) changes;
If you enter or end a de facto relationship.
How can you “update” your will?
You cannot add to or delete from a Will after execution. Consult a legal practitioner if you want to change or revoke your Will because even the simplest changes must be done correctly or they may have unintended results. An update to your Will is not a mere amendment to the existing will, but rather a new will is drafted revoking the old one and replacing it with the most recent.
If you wish to draft a letter or document relating to your affairs after your death, you should consult a solicitor about its contents. The danger is that it may not be clear whether the document is intended to be testamentary in nature (ie a Will or codicil), and litigation about the status of the document may result.
Considerations for beneficiaries You should carefully consider the personal and financial implications of your will on your beneficiaries. For example, if a beneficiary is at risk of being declared bankrupt or is otherwise financially unstable, any interest that that beneficiary receives from the estate might pass directly to the trustee in bankruptcy or to creditors. A further example is if a beneficiary has an intellectual disability, addiction or mental health issue, you may wish to contemplate placing that beneficiary’s interest in a trust. It is important to discuss such issues with your solicitor when your will is being drafted.
Considerations relating to relationships If you marry, your Will is automatically revoked by the marriage unless the Will is expressed to be made in contemplation of that marriage. On the other hand, divorce also may affect your Will. The matter is complex and the law is not uniform throughout Australia. If you are contemplating divorce, or have been divorced since making your Will, you will need to consider the implications this may have on your Will. Updating your Will to reflect your current life situation is of high importance.
Get the right advice
It is critical to get the right advice about your Will. Contact us on 03 9450 9400 to arrange a confidential consultation with an experienced lawyer. Our lawyers can:
Conduct an initial interview to determine whether your Will should be updated;
Advise you on any queries or concerns you have about your Will; and
Draft an updated Will for you.
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