This guide outlines how to update your Will, and what to watch out for in the process.
Your Will is one of the most important legal documents you will ever sign. It outlines your wishes for the distribution of your assets after your death and can help to ensure that your loved ones are taken care of. It can also appoint executors to manage your estate and guardians for minor children. A valid and up-to-date Will helps ensure your wishes are followed and reduces the risk of disputes.
However, many people do not update their Wills regularly, which can lead to a number of problems. If your Will no longer reflects your current circumstances, it may cause uncertainty, delay, or conflict for those you leave behind.
What can happen if your Will is out-of-date?
There are a number of reasons why having an out-of-date Will is risky. First, if your Will is outdated, it may not reflect your current wishes and circumstances. For example, if you have gotten married or divorced, had children or grandchildren, or acquired or disposed of significant assets since your Will was last updated, your Will may no longer be accurate or provide for those you wish to benefit.
Second, if your Will is outdated, it may be invalidated. This can happen if you have not signed or witnessed your Will properly, or if you have made changes to your Will without following the proper legal procedures.
Third, if your Will is outdated, unclear or incomplete, it may lead to disputes and litigation between your family members and beneficiaries after your death. This is because your Will may not be clear or specific about your wishes, or it may not take into account all of your assets and liabilities.
Life events that can impact your Will
There are a number of life events that can impact your Will, including:
- Marriage: In NSW, a Will is automatically revoked when you marry unless it is made in contemplation of that marriage.
- Divorce: A Will is partially revoked when you divorce. Any gifts to your former spouse and the appointment of your spouse as an executor, trustee or guardian will be revoked, the rest of your Will remains in effect. Note this is only a partial revocation of the Will so it is extremely important you make a new Will after a divorce to ensure your estate plan is complete.
- Separation: Separation does not revoke a Will. If you separate from a partner (whether married or de facto), you should update your Will to reflect your current wishes.
- Birth or adoption of a child or grandchild: If you have children or grandchildren after your Will is made, you may want to update your Will to include them as beneficiaries, update guardianship provisions, or adjust how your estate is divided.
- Death of a beneficiary or executor: If a person named in your Will dies, you may need to appoint a replacement or redistribute their share.
- Significant changes to your assets: Buying or selling property, establishing a business, or receiving an inheritance may require changes to your estate plan.
- Change in your financial circumstances: If your financial circumstances change significantly after your Will is made, you should update your Will to ensure that it is still realistic and achievable.
- Change in your health: If your health changes significantly after your Will is made, you should update your Will to include or remove provisions for your care and treatment.
- Change in your relationships with your loved ones: If your relationships with your loved ones change significantly after your Will is made, you may want to update your Will to reflect your current wishes.
If any of the life events listed above have occurred since your Will was last updated, it is important to review and update your Will as soon as possible. This will help to ensure that your Will is valid and that your wishes will be carried out after your death.
Update your Will: best practice
It is generally advisable to prepare a new Will rather than amending an existing one. This ensures the document is clear, internally consistent, and complies with the Succession Act 2006 (NSW).
Your solicitor will:
- Review your current circumstances and wishes.
- Ensure your Will complies with NSW legal requirements for execution and witnessing.
- Advise on related estate planning documents, such as Enduring Powers of Attorney and Appointments of Enduring Guardian.
Key takeaway
Having an out-of-date Will can lead to a number of problems, including disputes between your loved ones after your death. It is important to review and update your Will regularly to ensure that it reflects your current wishes and circumstances.
Your Will should be reviewed every few years, or sooner if a major life event occurs. An up-to-date Will is one of the most effective ways to protect your loved ones and ensure your estate is distributed as you intend.
Tracey Dwyer is a dedicated Wills & Estates Solicitor with over 20 years of experience in the legal industry. Tracey specialises in a wide range of estate planning matters and is passionate about educating her clients on the importance of comprehensive estate planning. Her expertise includes drafting complex wills with testamentary and special disability trusts, advising on aged care and retirement village agreements, and handling deceased estate administration. She also has experience in family provision claims and property law. Tracey holds a Master of Laws from the University of New England. www.owenhodge.com.au
