22nd February 2022
22nd February 2022
Once you prepare your will, it can remain in effect until you die, change it, or revoke it. In some cases, a change in your circumstances, such as a marriage or divorce, can cause your will to be revoked.
Therefore, it's prudent to periodically review your will to make sure that it carries out your current wishes, reflects your current circumstances, and is not adversely affected by any new laws. However, certain life events especially demand that you review your will and consider updating it. This guide will explore each of these events that would warrant a review of your will and then explain how a will can be updated, changed, or revoked if that becomes necessary.
You can change, add to, or even revoke your will any time before your death as long as you have the mental capacity to understand what you are doing. You should review your will periodically (every few years) to ensure that it still reflects your current circumstances and your wishes. You should also review it whenever there is a change in your circumstances or a change in the law.
However, the purpose of a will is to make sure that your wishes are accurately reflected. This is why it's best to review your will under the following circumstances and then modify your will as necessary to keep up with changes in your desires and the law.
You need to review your will if you have a child, through birth or adoption, after you make your will.
Although it is possible to write a will that provides gifts for any future children, you may want to appoint a guardian for your child, set up a trust fund, or otherwise make provisions for your child in the event of your death.
Adopted children are generally treated the same as biological children when it comes to inheriting under a will. However step children (who have not been legally adopted) generally are not treated the same.
Of course, gifting money to children is not the only thing to consider. You may need to think about naming one or more guardians to care for your children in the event that you die before they reach adulthood. You may also need to think about how your estate is going to be managed during that time period, and the age at which any of your estate should be gifted to your children (for example, age 18, age 21 or age 25).
Australian law generally provides children with a right to make a claim against their parent's will, meaning that even if a child is disinherited, they may be able to commence legal action to claim a part of the estate. This can be an expensive process, and can be very damaging to family relationships. The costs of any litigation may come out of the estate, meaning once it is all over, there is less money to be shared amongst your beneficiaries. Therefore, you should always make sure that that your will is carefully prepared, taking account for any children that you have. There may be ways to structure the estate to ensure that it ends up where you want it to go, and to minimise the risk of legal action. Careful planning ahead of time is important.
You should review your will when a close family member, such as a spouse, child, or parent has died, or when a beneficiary named in the will has died.
If your will provides for several beneficiaries, but one of them dies, then the gift may still go to the surviving beneficiaries. If you have not named anyone, it will pass according to the terms of the residuary clause. A residuary clause is a clause in the will that gives away any portion of an estate after all other specific gifts have been given away. If there is no residuary clause, that portion will be treated as if there were no will at all.
When you get married, you will most likely want to change your will to provide for your new spouse. What happens if you don't change your will? Under Australian law, your will is most likely invalidated. There are a few limited exceptions to this, but it is best to assume that your will has been invalidated, and to use it as an opportunity to make an update.
If you die without a valid will, your property will be distributed as though there were no will at all, even if you didn't want to make any changes to the earlier will.
If you have obtained a divorce or are in the process of doing so, you should review your will for possible changes. Under Australian law, the act of divorce generally cuts the ex-spouse out of the will. However, this only occurs once the divorce has been finalised. If you die before the divorce has been finalised, then your ex-spouse is likely to inherit your estate.
If you have separated from your spouse but have not yet divorced, then you should update your will. Under Australian law, you are still considered to be "married". If you die during this period, without having updated your will, then your estate is likely to be passed to your ex-spouse.
You should review your will for possible changes when you move to or from Australia.
If you have named people to act as executors or guardians for your children, and these people are located a long way from your new home, then this could create logistical problems after you die. An executor who is located overseas or interstate may find it difficult to fulfil their duties from a distance. If your children have to move overseas or interstate to live with the guardians, then this could be very disruptive for them and could rip them away from their friends at a time that is already going to be very difficult for them. Therefore, you should consider changing your will to name executors and guardians who live closer to your new home.
For a young couple starting out without children or much property, a simple will may be sufficient. However, as the size of their family and estate grows, they may need to change their wills to nominate guardians for their minor children and to set up trusts for them.
Similarly, when there are major changes in the law, it is important to review your will.
If you prepare a will which provides for your own children, and then your children have children of their own, changes in the will may again be called for. You might want to give certain gifts to your grandchildren when you pass away, or you might choose to set up a fund to provide for their educational costs.
On the other hand, if you name a beneficiary in your will, and that person runs into some challenging circumstances then you might again need to consider changing your will. For example, if a beneficiary develops a gambling problem or a drug addiction, then you might need to think carefully about whether it is a good idea to provide them with a lump sum of cash, or whether you would be better off creating a fund to contribute to their living costs, but which is managed by somebody else.
If you wish to change your will, you can make a "codicil" to your existing will, or you can prepare a completely new will.
A codicil is a document that formally amends the will, and needs to be prepared, signed and witnessed just like a will.
To avoid any confusion, and to make sure that there are no contradictions between your will and your codicil, it is often easier and tidier to just prepare a new will. If the changes are complicated, then it is preferable to create a new will. If you have already amended your will several times in the past through the use of codicils, then it is also worth considering preparing a new will, as things can get confusing if there are too many codicils attached to the will.
In order to prepare a new will, you will need to have the mental capacity to understand what you are doing, you can not be under duress, and you will need to sign the will in front of two independent adult witnesses who also sign the will.
Life doesn't stand still and after you've crafted your initial estate plan, your circumstances are likely to change. You may have more children, acquire more assets, get divorced or remarried. Further, the law may change, making some of your estate planning obsolete or counterproductive. Most of these life changes are also a chance to review and update your estate plan to make sure everything is accounted for and your will accurately reflects your wishes.
You can make small changes to your will through a codicil. However, in most cases, and especially for major changes, you should revoke your will and write a new one.
If in doubt, seek legal advice.