When should a will be changed?

Date: Feb 03, 2012
Document Type: Newsletter

Drafting a will can be a long, complicated process. Once it has been witnessed and filed away for safekeeping, it can be tempting to rarely think about it again. But keeping your will up to date is extremely important.  Wills are often made years before a person dies, and there may be significant changes to an estate between when the will was written and when the will is executed.

Keeping a will up to date need not require significant effort. Many lawyers recommend a full reassessment every 3-5 years. During this reassessment, you should consider any changes in life circumstances that may have an impact upon the beneficiaries to your estate, or the allocation of your assets.

Common reasons for modifying a will include the birth of a child or grandchild, the purchase of assets not included in your will, or the disposal of assets gifted in your will (such as the sale of a home or car) will impact  on how, and to whom, you wish to gift your assets.

In most Australian states, the law will take into account any relevant change in marital circumstances when a will is executed – for example, in the case of divorce, revoking any gift to a former spouse or including a new spouse as a beneficiary in a will. However, given the complicated nature of succession laws, most lawyers strongly recommend drafting a completely new will when a person’s marital status has changed.  

It is also worth noting that a will does not become invalid if the willmaker changes their name (e.g. by deed poll) or address, between the time the will was signed, and the date of death. Generally, a will remains valid unless it is revoked and a beneficiary is able to receive benefits.

Some events which may cause you to consider modifying or revoking your will are:

  • change in marital status: succession laws in Australia generally account for changes in circumstances such as marriage and divorce. However these laws vary between the states and will not account for your personal circumstances or intentions;
  • births and deaths: updating a will to account for the birth of a child is very important, particularly if you intend on appointing a legal guardian for your child if anything happens to you and your spouse. A codicil may be sufficient if you already have children and will not be changing the guardian, but if it is for a first child and /or a new guardian, a new will should be written. Similarly, the loss of a loved one may require a redistribution of assets;
  • new or disposed of assets: if you have bestowed certain gifts to people in your will, and you no longer have those properties, you should also amend your will accordingly.  

If you do decide that you need to change or amend your will, it can be done in a several ways. Depending upon the extent of the change, you may need to insert a codicil (an addition made to an earlier will) that will modify or change anything in a will. However it is important to note that a codicil is not intended to cancel or revoke previous wills or testamentary dispositions. In fact, if the result of codicil revokes the will it is meant to be modifying, then the whole will could become invalid.  

However, many lawyers recommend that in instances where events are significant, then a whole new will should be drafted that accurately reflects the new intentions of the testator. This is particularly important in the case of divorce, where lawyers generally recommend a person make a new will, rather than relying on the partial revocation provisions in succession legislation.
A lawyer will be able to help you examine your circumstances to determine if you need to make any changes to your will.

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