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  • Writer's pictureJarrod Carter

Should I Update My Will?


Jim Morrison, of The Doors once said, “The future is uncertain, but the end is always near.” He was right. The grim reaper wasn’t far away from the young binge-drinking Rockstar who died in a bathtub at the age of 27, on 3 July 1971. The official cause of death was heart failure.


It was reading this quote that made me realize that I should probably update my Will. As a lawyer, I have no excuse for my procrastination. I took the first step, which was finding the old one and actually reading it. I discovered that my Will did not include my son who had been born since I had prepared it. Currently, my collection of guitars was all to be left to my daughter, and the real estate to their mother. Nothing for my son.


At the age of 40, I have no plans of dying suddenly. However, just like Jim Morrison, I know that I also drink a bit too much and enjoy hot baths. Perhaps for me also the end is near? Hopefully not, but just in case, I think updating my Will is the right thing to do.


The following article goes through some of the life changes that require the updating of a Will.


Change to Marital Status


If you become married, your Will is automatically invalidated. The only exception is if your Will is prepared in anticipation of marriage and includes a clause similar to, “this Will is made in contemplation of my marriage to Joe Bloggs”. If your Will makes no mention of an upcoming marriage, your Will becomes invalidated even if you include your future spouse as a beneficiary. See section 14 of the Wills Act.


Similarly, if you become divorced, or your marriage is annulled, your Will is automatically invalidated. Once again, the only exception is if your Will states that becoming divorced does not invalidate your Will. This would be something like, “this Will is made in contemplation that it not be revoked upon my divorce from Joe Bloggs”. See section 14A of the Wills Act


Change to Executor or Trustee


When you create your Will, you need to appoint a person or people to administer your estate if you pass away. They become responsible for making sure that your wishes are followed. This can also include appointing a back-up trustee/executor.


If an appointed person passes away, you need to update your Will. Additionally, if they become legally incapacitated through an injury, or medical issue such as dementia, then you also need to consider appointing someone else. You should also note that your trustee/executor may elect to withdraw from their appointment, so it is a good idea to make sure that your nominated person is still up for the job.


Changes in Beneficiaries


The most important aspect of any Will is to clearly describe who is to benefit from your estate. Anyone who receives money, or other valuables as a part of a Will is called a beneficiary. If any of your beneficiaries pass away, it is important to check your Will to make sure that your intentions are still covered. Furthermore, the death of a major beneficiary may mean that you want to change your Will entirely, perhaps to include a charity.


Additionally, your family may be expanding, and the birth of new children or grandchildren may require that you update your Will to include them.


Change to Beneficiary Circumstances


If you have two children, it may be your intention that your children should benefit equally from your estate. This may be the case when your children are young, but as they age, circumstances can change. For example, what if one child is disabled in an accident and the other child becomes a successful business entrepreneur? Should the estate be split equally in that case? What about if the children are equally successful but then one wins millions of dollars in the lottery?


It is important to make sure that as the material conditions of the lives of your beneficiaries change that your Will remains in line with what you consider to be appropriate. When it comes to jointly owned assets, it is also a good idea to discuss these changes with your partner because you might have different ideas about how your Wills are to be amended.


Change in the Law


Over time, the law does change and your Will needs to be prepared in contemplation of the Law as it stands. Even if your circumstances haven’t changed, you may want to obtain some advice on changes in the law. This becomes more necessary over time. For example, if your Will was prepared ten years ago, you may want to have a lawyer check it to make sure it still satisfies your needs.


Relationship Estrangement


If you have separated from a partner, or had a falling out with a family member, you may need to update your Will.


When it comes to family members, you may need advice on whether it is a simple matter of removing the person from your listed beneficiaries. For example, if you remove your own child from the listed beneficiaries, you may need to go to extra lengths to protect your wishes. This can include specifically stating in the Will that you do not wish a particular person to benefit from your Will. Furthermore, it might be beneficial to prepare a statutory declaration explaining your decision to remove the person from your Will. This evidence can be later relied upon if the Will is thereafter challenged by the estranged family member.


Evidence of relationship estrangement does not invalidate a Will. Even if you and your estranged partner or spouse no longer live together, this does not invalidate any previous Will. Changes in relationship status with a spouse or de facto need to be addressed in an updated Will.


Substantial Financial changes


If you have major changes in your financial situation, you will likely need to update your Will. For example, if your wealth increases substantially, you might want to spread your good fortune to a larger group of beneficiaries to include grandchildren, nieces or nephews, or even a favorite charity. Similarly, if you have a reduction in your net wealth, you may wish to reduce the beneficiaries to just the most important people.


There are other changes to the structure of your assets which may require an update to your Will. Such changes might include lottery wins, purchasing or selling joint assets, compensation payouts, reaching retirement age and cashing out superannuation, the creation or dissolution of a family trust, or the sale of a business. If there are many major changes to your assets it is a good idea to obtain legal advice to make sure that your Will is still current and appropriate.


Conclusion


Updating your Will is one of those annoying jobs like going to the dentist, or replacing the tyres on your car. However, it is important to not leave a mess behind if you pass away. Having an invalidated, or incorrect Will can be a nightmare for those left behind. And no one wants to be concerned about updating their Will while facing a life threatening medical diagnosis. Be aware of the changes occurring in your life, and the lives of your trustees and beneficiaries.


We also recommend that if you do want to make changes to your Will, obtain legal advice as to whether the change can be done simply, or whether major amendments are required.





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