Once you have made a will, that’s not the end of it. You should review your will regularly to make sure it reflects your current personal and financial circumstances.
When it comes to wills, there are two hurdles – the first is simply getting it done. And while every adult Australian would benefit from having a will in place, it often becomes just another thing on the to do list. However, your will ensures your property and assets are distributed in the way you choose, which brings you peace of mind and certainty.
So, if you’ve been wondering whether you’re too young to make a will, think you don’t hold any assets, or simply think you don’t need one, it’s a good time to reconsider.
The second hurdle is after your will is in place – and this revolves around the question, how often should I update my will? Once you have a will in place, it remains in force even if your circumstances change, until you formally update or revoke it. The exceptions to this are if you marry or divorce, which can automatically revoke all or part of your will (more on both below). However, when your circumstances change, you may not want necessarily want your will to remain in force as is. And this is when updating your will becomes important.
Our recommendation is that your will should be reviewed every twelve months or when there is a significant personal or financial change in your circumstances, including the disposal of any assets which have been gifted under your will. This is to ensure that the bequests and terms of your will remain current and able to be realised in the event of your death.
If your will has been in place for a while now, it’s a good time to review it. Check to make sure that it still meets your needs and that nothing has been left out. Work with your lawyer to ensure that it’s updated to reflect any of those changes. And it’s a good idea to make a note in your calendar to review it again in twelve months’ time.
When it comes answering the question, how often should I update my will, there are several significant personal and financial circumstances that should prompt you:
Under the Succession Act 2006 (NSW), an existing will is automatically revoked when you marry unless the will was made in contemplation of marriage. If you get married after you have made a will (and the will was not made in contemplation of marriage), it’s time to make a new will. This is the case even if you would like it to be the same as your existing will.
If you have an existing will and have since separated from your spouse (but are not yet legally divorced), your spouse may still receive a benefit under your will. Separation does not automatically revoke a will. To remove any confusion about your wishes upon your death, it’s recommended that you review and update your will when you’re separating.
If you have an existing will and legally divorce, the divorce will not revoke your whole will. It will, however, automatically revoke any gift made to your former spouse under your will. It will also automatically revoke the appointment of your former spouse as executor, trustee or guardian (unless you have expressly stated otherwise in your will). The most straightforward path after divorce, is to make a new will.
If you have had children (or grandchildren) and would like them to be named and benefit under your will, it’s time to update your will. They could be added by way of codicil (more on that below), or you can take the opportunity to review your will and make a new one.
If a person named as beneficiary, executor or custodian/guardian (of minor children) under your will dies, it’s important to update your will. These choices will have an impact on how your estate is managed – or how your children are cared for. It’s important that they meet your wishes.
It’s sensible to update your will if your financial circumstances change significantly. You may have distributed a specific property (a holiday home, for example) under your will to a beneficiary but since sold that property. (You don’t want to be a cautionary tale!) Or you may have purchased a new property, asset or made an investment and would like to be clear as to who will benefit on your death.
The most straightforward way of updating your will is to make a new one altogether. This allows you to take into account all the changes that you want. It also makes it very clear to your executor how you would like your estate managed.
You can also use a separate, legal document called a codicil to make a minor, relatively simple change to your existing will. The codicil must meet the same formal requirements as a will.
Examples of minor changes where it may be cost-effective to use a codicil include:
It’s important that a solicitor assist with preparing a codicil, to ensure it does not contain a clause that cancels or revokes your existing will. If you are making significant (or multiple) changes to your will, a new will is likely the better option.
Once you have reviewed and updated your will, and ensured its terms reflect your current circumstances and wishes, it’s important that your will is safely stored. It’s also important to let your executor, beneficiaries and family know of its existence and where it is stored.
Wills can be stored with your solicitor – and this is a great choice. At home your will could be lost, damaged or stolen or otherwise not located at the time of your death.
At Patrick Dawson Law, we can assist you with all aspects of wills and estates. This includes planning and preparation, review and updating, drafting a new will or making a legal codicil. If you’re not sure whether you need a new will, we can help you to review your current will to see whether it reflects your current intentions and circumstances. We can also help with storing your will.
If your loved one’s will might not be legally valid, you need to know your rights. Read to find out about contesting a will in NSW when it’s invalid.
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