Updating Your Will: Why You Should Not Destroy Your Previous Will

KEY TAKEAWAYS:

• Making a new Will does not necessarily mean you should destroy your previous Will. Earlier Wills may become relevant if the new Will is challenged, cannot be located or is found to be invalid

• A new Will should properly revoke your previous Will to help avoid uncertainty about which document reflects your final wishes

• Your original Will should be stored safely, and your Executor should know where it is held so it can be located when required

• Keeping previous Wills can provide an important record of your testamentary documents and may assist if questions arise about the validity or interpretation of your current Will

Creating a new Will is an important part of ensuring your estate planning arrangements remain up to date. However, when replacing an existing Will, there are several important matters to consider, including what happens to your previous Will and where your current Will should be stored

Revoking Your Previous Will: 

Wills and Estates Lawyers generally preferable not to alter a Will by handwritten changes or other informal amendments, as this can create uncertainty about whether the document still accurately reflects the will-maker’s final testamentary wishes.

Preparing a new Will, rather than making handwritten changes to an existing one, helps ensure your wishes are clearly recorded and can reduce the risk of confusion if the Will is later reviewed, challenged, or cannot be located in its intended form.

When you make a new Will, it is important to ensure that your previous Will is properly revoked. Most professionally prepared Wills contain a revocation clause, which is intended to minimise any uncertainty about which document reflects your final testamentary wishes.

Another way you may revoke a Will is by physically destroying the whole document itself. A question that commonly arises in our practice is whether you should destroy your previous Will once a new Will has been made.

Should you destroy your previous Will?

The Wills and Estates Lawyers generally recommend that you seek legal advice before destroying a previous Will. Earlier Wills may become relevant if questions later arise concerning the validity, interpretation or circumstances surrounding a subsequent Will.

For example, if a later Will cannot be located, or its validity is challenged, the Court may need to consider earlier testamentary documents and the circumstances in which they were made. It is therefore important to keep a clear record of your current Will and to ensure that your solicitor is aware of any previous Wills that you have made.

What happens if there is no valid Will?

If you destroy your previous Will after making a new Will, but the new Will is later found to be invalid, you may be left without a valid Will. If a person dies without a valid Will, they are said to have died intestate. Their estate is then distributed in accordance with a predetermined hierarchy of beneficiaries arising from an application for a Grant of Letters of Administration.

This may be a complex and lengthy process, particularly where a person has a blended family, multiple spouses or de facto relationships, or other complicated family circumstances.

For more information on this topic, please visit 6 Steps to Take When the Deceased Didn’t Have a Will

Having a valid and up-to-date Will allows you to set out how you want your estate to be distributed rather than leaving the distribution solely to the statutory rules of intestacy. For this reason, it is important to keep your testamentary documents properly recorded and stored in a safe and secure location.

Storing Your Will

Once your Will has been properly prepared and executed, it is important to store the original document in a safe location, and your Executor should be able to access the original document when the time comes.

It is also sensible to store any previous Wills together with your current Will. Keeping these documents together helps maintain a complete record of your testamentary documents and minimises uncertainty in determining whether another Will or testamentary document exists. Coutts Lawyers & Conveyancers offer free safe custody storage not only for your current original Will, but also for your previous Wills and other estate planning documents.

Summary

When making a new Will, you should:

• Ensure your new Will properly revokes any previous Wills;

• Avoid destroying any previous Will in case your most recent Will is misplaced, invalid, or becomes contested;

• Store your original Wills in a safe and secure location; and

• Ensure your Executor knows where your current Will is held.

Taking these steps can help reduce uncertainty and make the administration of your estate easier for your loved ones and Executor.

ABOUT OLIVER LATHAM:

Oliver joined the Coutts team in July 2022, working as a Senior Lawyer within our Wills & Estates and Commercial Law teams, across our Narellan and Campbelltown offices.

Oliver has a Bachelor of Laws and a Bachelor of Communications and Media from the University of Wollongong. He completed his Graduate Diploma of Legal Practice with the College of Law.