Why is it so important to keep your Will updated?

Date: Aug 02, 2011
Document Type: Newsletter

A recent decision from the Supreme Court of New South Wales has highlighted the need to keep your Will updated.

In the NSW Trustee and Guardian v Ritchie [2011] the NSW Trustee applied to the Court for orders in relation to the administration of the Estate.

Under the Will the deceased had gifted “all her monies in her credit union account at the Lands Department Credit Union together with any funds received from the State Authorities Superannuation Board” to World Vision to be used for Aboriginal Childrens Welfare and Education.

However, at the time of death the deceased:

- Did not have an account conducted in the name Lands Department Credit Union; and
- There was no money identifiable as having been received from the State Authorities Superannuation Board, although the Board had clearly held monies for the deceased which were paid to her as a computed superannuation lump sum amount.

The Court was required to determine whether the monies held in these accounts had continued to exist or could be traced into investments made by the deceased. If the monies could not be traced then the gifts would fail and the monies revert to the residue of the deceased’s estate.

In relation to the deceased’s account with the Lands Department Credit Union evidence before the Court showed that this credit union had been absorbed by Reliance Credit Union with the deceased’s account number remaining the same.

The Court found that, whilst the gift of monies in the Land Department Credit Union had changed in name and form, it had not changed in substance. Accordingly, it was appropriate to treat the monies in the Reliance Credit account as the monies referred to in the Will as the Land Department Credit Union account.

In relation to the monies from the State Authorities Superannuation Board the Court found that these monies which had been paid out to the deceased had become so mixed with other funds of the deceased that they can no longer be identified.

This decision is a timely reminder of the difficulties that can be caused when a Will is not regularly reviewed or updated, particularly if your Will is quite specific in relation to your finances.

The repercussions of not reviewing your Will can have the effect that your intentions in relation to the distribution of your Estate are not met. For instance, in the above case the gift of monies in the deceased’s superannuation fund to World Vision Australia failed and the monies were distributed to the deceased’s half-sister.

It is important when you are drafting or reviewing your Will to speak to your legal adviser on any possible problems that may arise on the distribution of your Estate.

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