Updating A Will (NSW)
Good estate planning is an ongoing process. While every competent adult should make a will, it is also important that the will is regularly updated to reflect a testator’s changing circumstances. A testator should review their testamentary provisions at least once a year and also after major life events to ensure that the will remains an accurate reflection of their wishes. These testamentary revisions must still be compliant with the provisions outlined in the Succession Act 2006. This article outlines the importance of updating a will in New South Wales with reference to a recent case study.
How Often Should A Testator Update A Will?
A testator should review his or her testamentary instructions every year to account for new births and deaths in the family and to ensure that the provisions in the will are up to date. A good habit is to perform the review at the same time every year. This could be done by scheduling a check to coincide with the submission of a tax return when the testator has been freshly reminded of their financial circumstances.
It is also worth updating a will after major life events, as some events impact directly on the validity of testamentary instructions. For example, marriage revokes a will unless the testator wrote the document in contemplation of marriage. Similarly, a divorce revokes those parts of a will that pertain to the former spouse, including bequests and appointment of the spouse as trustee, guardian or executor.
A testator should also consider updating their will after the birth of new family members, not only to make provision for these children, but to clarify the language of the will to avoid confusion. For instance, if the will leaves a gift “to my grandchild” and there is now more than one grandchild, the will has become subject to ambiguity that can impede the execution of the will.
A testator must ensure that they revise their will after significant changes to their financial circumstances. As the testator obtains new assets, they need to be allocated in the will, otherwise the estate may be partially intestate. Updating a will is also necessary if the testator no longer has possession of an asset mentioned in the will. If a bequeathed asset has been sold or given away, the gift will be unenforceable. It is also harder for the executor to administrate the estate if the list of assets is outdated.
The testator should remember to update their will if something happens to someone mentioned in the document. For instance, if the sole named executor of a deceased estate passes away, the will should be updated to nominate a replacement or the Supreme Court will have to appoint an administrator to take over the estate administration.
Updating A Will In NSW
A testator may be tempted to make changes to their will in an informal manner, but there are good reasons why they should consult a solicitor before updating their will. An experienced wills and estate solicitor can identify problems with content and execution. There is a danger that informal revisions may obscure a testator’s intent, leaving the will open to interpretation, or have the effect of invalidating the will altogether.
Updating A Will Without Invalidating The Will
There are several different ways of updating a will. The easiest way to avoid confusion when updating a will is to completely rewrite the document. Making a new will automatically revokes any previous wills unless otherwise specified.
Another common method is to attach a codicil to the existing will to act as a legally binding postscript. This allows a testator to add or remove clauses in their will, but a codicil should only be used for smaller changes that can be read and comprehended in concert with the existing will.
Any updating of a will, including the creation of a codicil, must be executed in the same formal manner as any other will in order to be valid. That is not to say that an informal amendment will not be legally binding. The Succession Act 2006 makes provision for the Supreme Court to validate an informal will when it states the testamentary intentions of a deceased person but was not executed in accordance with statutory rules. The court must be satisfied that the deceased intended it to act as a will or an alteration to the will. They will give consideration to any evidence on the execution of the document, or the testamentary intentions of the deceased.
The Supreme Court of NSW examined the validity of updating a will in an informal manner in the 2019 case of Estate of the Late James Sundell. More specifically, the case centred on the legality of handwritten annotations to an existing will under section 8 of the Succession Act 2006.
The testator properly drafted and executed a will in November of 2010. In February 2011, the deceased made amendments to a clause in the will, initialled in four places, but crucially, did not have his signature witnessed. The clause at issue concerned the bequest of shares in a successful family business. The testator’s son was the original recipient of all the shares, but the amendments to the will served to divide the shares amongst other family members and close friends.
In this case, the testator’s son was seeking to have the will probated excluding the annotations that changed the distribution of the estate. The son claimed that he had always been the beneficiary of the company shares, and there had never been any reason for his father to change this provision. He claimed that he asked his father to make the changes to insulate the family’s assets when his estranged wife commenced family court proceedings. He instructed his father to make the corrections to the will but not have the amendments witnessed to ensure the changes were invalid because, as he deposed, “nothing will take effect unless it is witnessed properly”. The son’s argument was that both he and his father had an absolute belief that these amendments could never be valid because they were not witnessed and the amendments were, therefore, never intended to take effect.
Every other party involved in the case rejected the son’s claim that the amendments were never intended to be taken seriously. The executor of the estate, who was a business associate of the deceased, testified that he personally discussed the changes with the deceased and they were his true testamentary wishes. The testator’s widow confirmed that her husband updated his will because he no longer wanted his son to have exclusive control of the company. After hearing submissions from all parties, the court dismissed the son’s claims and probated the will including the handwritten annotations.
As this case study demonstrates, properly updating a will is essential in order to avoid costly challenge or the will being invalidated. If the testator, in this case, had consulted a solicitor about changing his will then the estate would not have been forced into time-consuming and expensive litigation to prove his testamentary intentions.
It is vital that a testator keep updating his or her will over time. The experienced solicitors at Armstrong Legal can help you draft a will to make allowance for the future, and make sure that any revisions are valid and legally binding. Please call our team on 1300 038 223 or make an appointment to discuss updating a will in New South Wales.