KEY TAKE-OUTS:
- Steps and processes for updating or changing a Will
- Revocation of a Will
- Effects of marriage and divorce
- Should you make a codicil or a new Will
Once you have made your Will, it will remain in full force and effect until you either revoke (cancel) it or change it.
The Scenario
You made a Will when you were single and bought your first house. The lawyer acting on your behalf in the purchase of the house suggested it would be a good idea for you to have a Will. Your Will appointed your parents as executors and left the whole of your estate to your sister and brother.
Since then, you have been in a long term relationship, had three children, your parents have died and you no longer speak to your sister. You also now own more than just your house. You received a significant inheritance from your parents’ estate, have purchased another real estate property with your partner and accrued superannuation through your employment.
You die unexpectedly. Your sister and brother will receive any assets in your sole name that are dealt with via your Will. Your partner and children are not surprisingly disappointed to miss out on the benefit of those assets. Yes, your partner and children can make a claim against your estate to request they receive more but this claim costs time and money during what will already be an emotionally difficult time.
The Solution
Update your Will as soon as your financial and/or personal circumstances change.
The Law
In New South Wales, Section 11 of the Succession Act 2006 sets out that a Will may be revoked:
- By an order of the court;
- By marriage;
- By divorce (In part);
- By a later Will;
- By written declaration making clear your intention to revoke the Will. This declaration should be executed in the same manner as a Will;
- By you or someone in your presence burning, tearing or otherwise destroying the Will with the intention of revoking it; or
- By you personally or someone in your presence dealing with the Will in a manner that the Court is satisfied from the state of the Will that you intended to revoke it.
Marriage
A Will is automatically revoked when you marry unless your existing Will stated that the Will was made “in contemplation of marriage”. In which case, your Will remains valid notwithstanding your marriage.
Your Will is not fully revoked if you marry the person to whom you left assets in your Will or whom you appointed to be your executor. In this case, the gift and position of the executor to the person you married will remain valid, however the remainder of your Will is revoked.
Divorce
A divorce does not revoke your entire Will, but it does revoke any gifts you are making to your ex-spouse. It also revokes the appointment of your ex-spouse as your executor, guardian or trustee.
Much like marriage, a clause may be included in the Will to provide for the gift or appointment to remain valid, despite the divorce.
The Process
Although you can make written changes to an existing Will, for those changes to be valid, you must have two independent witnesses with you when you make the changes. You must also sign to confirm those changes. The two witnesses must also sign the Will to say they have witnessed you make those changes and witnessed you sign it.
As you can imagine, this can make for a messy and confusing document. It is therefore preferable to set out any changes in a codicil or a completely new Will.
A Codicil
A codicil is a supplementary document to the Will which sets out a revocation or an addition to your Will. It is commonly used to make minor changes to a Will such as changing an executor, adding a person to the Will, or changing a gift that a person is to receive in a Will.
If you make a codicil, you must sign it and have it witnessed in the same way as a Will.
A codicil should be kept with your Will.
You can make more than one codicil.
A New Will
If the changes or additions you wish to make to your Will are complex or you have many changes, it is preferable to make a new Will.
A new Will automatically revokes an old Will in its entirety. You can then easily and clearly set out in your new Will what your new wishes are on your death.
How often should you change your will?
You can change your Will as many times as you like if you are mentally capable to do so.
On the contrary, you may not ever need to change your Will once it is made.
You should however review your Will at least every 2-3 years to make sure it still correctly sets out your wishes on your death. You may also need to review it earlier if one of the following life events occur:
- You marry, separate or divorce.
- Your family dynamic changes, such as children, stepchildren, or grandchildren.
- Your financial circumstances change such as you receive a windfall, compensation or inheritance.
- You buy or sell assets.
- Your illness or the illness or death of a loved one.
Revoking a will without a new will
If you revoke your Will by destroying it and you do not enter into a new Will, your assets will be dealt with by the rules of intestacy set out in the Succession Act (NSW).
The rules of intestacy are a pre-determined list of who is to receive your assets on your death. This list is based firstly on whether you are married and/or in a de facto relationship and if you do or do not have children. If you are not married and/or in a de facto relationship and do not have children, your parents, siblings and/or nephews and nieces may receive your assets on your death depending on who survives you.
What to do now
To make sure your wishes are carried out on your death and that any changes to your Will are valid, contact our office to make an appointment to see one of the experienced lawyers in our Wills and Estates team.
For further information please don’t hesitate to contact:
info@couttslegal.com.au
1300 268 887
Contact Coutts Lawyers & Conveyancers today.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.
