Updating A Will (Vic)
It is essential that a testator understand that good estate planning means regularly reviewing and updating a will. Otherwise, the document will not reflect the testator’s changing familial and financial circumstances, nor will it take account of relevant changes to the circumstances of named executors and beneficiaries of the estate. The testator must take note of the Wills Act 1997 when updating their will in order to ensure that the document remains valid. This article explains the importance of updating a will in Victoria and the rules that must be observed in the process.
Updating A Will In Victoria
While a testator might be tempted to revise their will by making a notation in the margins, any updating of a will should be done in consultation with a solicitor. Otherwise, the changes may invalidate the will or obscure the testator’s intent and leave their wishes open to interpretation. An experienced solicitor will not only identify problem areas in the will, they will know the right questions to ask so that a testator accounts for all of their assets in the will.
How Often Does A Will Need Updating?
A testator should review a will annually to account for the changes over the previous year. In that way, a testator will have an easy recall of changes that occurred over the previous twelve months, such as new births or deaths in the family and the acquisition and sale of assets. A good practice is to tie the annual check to a particular date, such as scheduling a review of the will on the first day of the new financial year.
Updating A Will After Certain Milestones
As well as performing an annual review of the terms of their will, a testator should also update their will after major milestones. For instance, a will should be revised to account for any long-term de facto relationships and particularly a new marriage. Marriage revokes a testator’s will unless it is clear that it was written in contemplation of marriage. Equally, a testator should also update their will if their relationship breaks down, as a divorce negates any appointment of or bequest to a former spouse in a will. As new family members are born and people marry into the family, a testator may want to revise their will to make provision for newcomers or clarify the current language to avoid confusion.
Updating a will is also advisable after major changes to the testator’s financial circumstances. As the testator acquires significant property or invests in a business, there needs to be clear instructions regarding the future distribution of these assets. Otherwise, if the testator dies in possession of assets that are not mentioned in the will, they could be partially intestate. In that case, the unrecorded assets will be administered according to the intestacy provisions of the Administration and Probate Act 1958. Likewise, it is necessary to update a will if an asset that is mentioned in the will is sold or is no longer in the testator’s possession. If there are assets included in the will that the testator no longer owns, then it will be harder for the executor to collect the assets of the estate together, and a specific bequest may no longer belong to the estate.
Updating a will is also essential to account for changes in the lives of those mentioned in the will. If a beneficiary or executor passes away before the testator, this can needlessly complicate the administration of the deceased estate. When a sole executor named in the will predeceases the testator, an eligible person will have to apply to be appointed as administrator of the estate. In the event that a beneficiary dies before they can inherit, the bequest will revert to the residual legatee.
It is also important that a testator take note if their appointed executor or a beneficiary is declared bankrupt. There may be challenges to the suitability of a bankrupt executor to administrate the estate, and a beneficiary may lose any bequest to their trustee in bankruptcy.
Procedure For Updating A Will
There are several ways to update a will. The most straightforward method is for a testator to make a new valid will, which will automatically revoke their old will. It is standard for the wording of the document to state that the new will revokes all previous wills. Starting over with a new will reduces the potential for confusion.
Alternatively, a testator can draft a codicil to their existing will. A codicil is a postscript that is a legally binding way to remove or add clauses to the will. This document must be executed in the same manner as a will, signed and witnessed in line with statutory regulations. This option is best used for smaller changes that can be clearly understood in context with the existing will, as it is important that the codicil does not cause confusion. The codicil must be attached to the current will so that they are read and understood together.
It is essential that a testator keep updating their will as their circumstances change. The contested wills team at Armstrong Legal can draft a will to best account for the future, and help review and update the will to reflect current circumstances. Please contact or call our experienced team on 1300 038 223 to discuss updating a will in Victoria.