As a general rule you should have your Will amended (or get a new Will drafted if amending isn't possible) when you experience a major change in your life or a significant event, for example:
- You plan to get married. Saying those magical words "I do" may revoke your existing Will. For peace of mind, and to ensure your spouse is cared for as you intend, you can either obtain a completely new Will once you are married, or obtain a Will in contemplation of marriage before you get married, the latter of which is usually a good idea if you plan to get married overseas.
- You are separated or divorced. If you are separated but not divorced it is very important that your Will is updated to reflect your current circumstances. If you die and do not amend your Will your assets may end up in the hands of your ex partner.
- Death of your executor named in your Will. It is a good idea to update your Will when the executor named in your Will dies, especially when an alternate executor is not appointed. If your executor dies before you and you have not appointed an alternate executor, the court will appoint an administrator to take the place of the executor. To stay in control of your affairs ensure you have a living executor and alternate executor appointed in your Will at all times.
- Changes in the law. The law in the area of Wills and Estates is constantly changing. It is a good idea to have your Will reviewed by a solicitor specialising in the area of Wills and Estates from time to time to ensure your Will remains up to date and valid.
- You change your mind about who you want to inherit a portion of your property. You should amend your Will so that your Will reflects your intentions at all times, however keep in mind Family Provision Chapters of the Succession Act that empower certain persons to make a claim against your estate where adequate provision is not made for them under your Will.
- You have children. You can better provide for your children by having testamentary trusts in your Will. There are taxation, asset protection (against bankruptcy and in some cases divorce) and other benefits for having testamentary trusts in your Will. Testamentary trusts are also useful when a beneficiary is either incapable of managing their own affairs or is vulnerable to exploitation, for example, where a beneficiary is disabled or has spendthrift tendencies.
- To change the guardian of your child (or children). A guardian is the person you nominate in your Will to raise your child in the unlikely event that both you and your spouse become permanently incapacitated or die. You should ensure you amend your Will if the guardian appointed under your Will dies. This is important to ensure your child is raised by the person of your choice and not by someone appointed by the Court!
- You acquire or dispose of substantial or sentimental assets. If you've made a specific gift of property in your Will and you subsequently sell the gift, you should amend your will to remove reference to the gift. Likewise, if you obtain new property, for example a new ring with sentimental value, and you decide to leave it to someone specific, you'll need to amend your will to make your wishes clear. If you fail to do this your ring will form part of the residual of your estate and will likely be sold!
Obviously this list is by no means exhaustive. It does, however, serve to highlight some of the more common situations that should prompt you to review your Will. Should you have any queries with relation to your estate planning requirements, or should you like us to review your existing Will to ensure it is up to date and valid.
Angela Harvey, Partner
Phone: + 61 2 9233 5544
Email: axh@swaab.com.au
Phillip Briffa, Solicitor
Phone: + 61 2 9233 5544
Email: pjb@swaab.com.au
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.