Updating A Will In Australia
It is a common misconception that a will is a document that is written once and then simply stored away safely until after death. On the contrary, a will is a document that should be reviewed regularly and updated to reflect the testator’s changing financial and familial circumstances, and any changes to the circumstances of the appointed executors and beneficiaries of the estate. This article deals with updating a will in Australia.
Updating A Will Without A Solicitor
A testator should have a solicitor update their will instead of attempting to do so by themselves. If a testator fails to consult a solicitor, the changes they make may affect the validity of the will or change things so that the estate is not administered as they wish. A solicitor will not only pick up any discrepancies in the will, but they will also have the knowledge to ask the testator the right questions so that the will is legally valid and accounts for all assets. It is important to understand that one inadequately drafted provision can cause the will as a whole to fail and render the estate intestate.
Updating A Will: How Often Should A Testator Revise A Will?
A testator should review their will at least once a year. This allows for fresh recollection of any changes that occurred over the prior twelve months, including new births and deaths, and the acquisition or disposal of property. It may be easier for the testator to remember to do this annual check if it is scheduled for the same time each year, such as coinciding with the completion of a tax return or on New Years Day.
What Should Prompt A Testator To Update A Will?
A testator should also update their will after major life events, such as after a milestone in a relationship. For example, a will should reflect any new marriage and/or long-term de facto relationship that the testator formed since the will was drawn up or last updated. A marriage effectively revokes a testator’s will unless that will was clearly drafted in contemplation of marriage. The dissolution of a relationship should also prompt a review and update of a will, particularly after a divorce, as a divorce can revoke the terms of a will that reference the former spouse. When there is a new addition to the family, the testator may wish to revisit their will to make provision for their child or grandchild, or to ensure that the current language is sufficiently inclusive to encompass new family members as they arrive.
Another reason for updating a will is when there is a major change to the testator’s finances or assets. When a testator acquires new assets that significantly contribute to the deceased estate, they need to insert instructions for the disposal of these assets into the will. If a testator dies with assets that are not accounted for in their will, then they die partially intestate and those assets will be subject to the rules of intestate succession legislation. A will should also be updated to remove mention of assets if the testator has sold or disposed of the asset since the last time the will was revised. Having assets listed in a will that the testator no longer owns will not cause a partial intestacy, but it will cause confusion for the executor when they come to collect together the assets of the estate.
Another cause for updating a will is a change in the executor or a beneficiary’s circumstances. The death of an executor or beneficiary can complicate the administration of the deceased estate. If the only named executor predeceases a testator, then someone else will have to apply to the relevant Supreme Court to be appointed as administrator of the estate. It is also essential that a testator update their will if a beneficiary or executor has been declared bankrupt. There may be challenges as to the suitability of a bankrupt person to act as executor, and a bankruptcy trustee may seize assets bequeathed to a bankrupt beneficiary.
How Is A Will Updated?
After a will is written and appropriately signed and witnessed, there are two ways to update the will. The testator can revoke their prior will and make an entirely new will. Completely rewriting a will reduces confusion but it will probably be a more time consuming and expensive process. The alternative is for the testator to make a codicil to their existing will. A codicil is a legal and binding postscript to the will, either removing or adding clauses. This is the best approach for small changes that are easily understandable in context with the rest of the instructions in the will. A codicil still needs to be signed and witnessed in accordance with statutory regulations. The codicil needs to be kept with the existing will so that they are read contemporaneously.
It is essential that you keep updating your will as your circumstances change. The contested wills team at Armstrong Legal can help you draft your will to account for future eventualities, and assist you to review and update the conditions of an existing will. Please call 1300 038 223 or make an appointment to discuss your legal needs with our team.