When should a will be changed?

Date: Feb 03, 2012
Document Type: Newsletter

Drafting a will can be a long, complicated process. Once it has been witnessed and filed away for safekeeping, it can be tempting to rarely think about it again. But keeping your will up to date is extremely important.  Wills are often made years before a person dies, and there may be significant changes to an estate between when the will was written and when the will is executed.

Keeping a will up to date need not require significant effort. Many lawyers recommend a full reassessment every 3-5 years. During this reassessment, you should consider any changes in life circumstances that may have an impact upon the beneficiaries to your estate, or the allocation of your assets.

Common reasons for modifying a will include the birth of a child or grandchild, the purchase of assets not included in your will, or the disposal of assets gifted in your will (such as the sale of a home or car) will impact  on how, and to whom, you wish to gift your assets.

In most Australian states, the law will take into account any relevant change in marital circumstances when a will is executed – for example, in the case of divorce, revoking any gift to a former spouse or including a new spouse as a beneficiary in a will. However, given the complicated nature of succession laws, most lawyers strongly recommend drafting a completely new will when a person’s marital status has changed.  

It is also worth noting that a will does not become invalid if the willmaker changes their name (e.g. by deed poll) or address, between the time the will was signed, and the date of death. Generally, a will remains valid unless it is revoked and a beneficiary is able to receive benefits.

Some events which may cause you to consider modifying or revoking your will are:

  • change in marital status: succession laws in Australia generally account for changes in circumstances such as marriage and divorce. However these laws vary between the states and will not account for your personal circumstances or intentions;
  • births and deaths: updating a will to account for the birth of a child is very important, particularly if you intend on appointing a legal guardian for your child if anything happens to you and your spouse. A codicil may be sufficient if you already have children and will not be changing the guardian, but if it is for a first child and /or a new guardian, a new will should be written. Similarly, the loss of a loved one may require a redistribution of assets;
  • new or disposed of assets: if you have bestowed certain gifts to people in your will, and you no longer have those properties, you should also amend your will accordingly.  

If you do decide that you need to change or amend your will, it can be done in a several ways. Depending upon the extent of the change, you may need to insert a codicil (an addition made to an earlier will) that will modify or change anything in a will. However it is important to note that a codicil is not intended to cancel or revoke previous wills or testamentary dispositions. In fact, if the result of codicil revokes the will it is meant to be modifying, then the whole will could become invalid.  

However, many lawyers recommend that in instances where events are significant, then a whole new will should be drafted that accurately reflects the new intentions of the testator. This is particularly important in the case of divorce, where lawyers generally recommend a person make a new will, rather than relying on the partial revocation provisions in succession legislation.
A lawyer will be able to help you examine your circumstances to determine if you need to make any changes to your will.

Bankrupt Estates
Date: May 02, 2010
Can I bequeath my heart?
Date: Dec 13, 2011
Can I write my own will?
Date: May 01, 2007
Capacity to make a will
Date: Jun 20, 2014
Caveats in Probate Proceedings
Date: Jul 24, 2014
Choosing your executor
Date: May 09, 2012
Coercion in making a will
Date: Sep 07, 2011
Court Made Wills
Date: Jul 21, 2009
Creating a Living Will
Date: Jun 06, 2011
Do I Need a Power of Attorney?
Date: Nov 01, 2009
Family Provision Overview
Date: Jul 16, 2012
Fixing errors in Wills
Date: Mar 28, 2012
Gambling away inheritance?
Date: Jun 18, 2012
He didn't leave me anything
Date: May 05, 2009
Informal and Stopgap Wills
Date: Nov 26, 2013
Life changes and wills
Date: Mar 12, 2013
Lost Wills
Date: Mar 21, 2014
Moral duty and family provision
Date: Oct 01, 2012
Obtaining Probate
Date: Feb 03, 2011
Organise Organ Donation
Date: Jun 04, 2010
Proper funeral planning
Date: Jan 31, 2013
Security for Costs
Date: Aug 08, 2010
Testamentary Capacity
Date: Apr 01, 2012
The Basics of Estate Planning
Date: Apr 01, 2011
The Curse of the Homemade Will
Date: Sep 18, 2014
The Guardianship Tribunal
Date: Feb 02, 2010
The Problem With Internet Wills
Date: Jun 18, 2014
The Will fundamentals
Date: Apr 05, 2009
What are Powers of Attorney?
Date: Jun 16, 2014
What can a will be written on?
Date: Sep 07, 2011
What is a “Benjamin Order”?
Date: Oct 04, 2013
What is a will?
Date: Jan 01, 2008
When should a will be changed?
Date: Feb 03, 2012
When should I make a will?
Date: Mar 01, 2008
Who will look after your pets?
Date: Nov 15, 2011
Witnessing a will
Date: Sep 07, 2011
Back to Publication List