A Will is more than a simple document recording your last wishes, it’s also vital that your Will is reviewed and updated from time to time to make sure it stays up to date with your circumstances.
When should you update your Will
We recommend that you consider making a new Will if any of the following situations arise:
- De facto couples: If you’ve commenced a new relationship, you may need to revisit your Will to consider how this relationship fits in with your wishes.
- Marriage: If you get married, your marriage will automatically invalidate your Will unless your current Will specifically states that it is made in contemplation of that marriage.
- Divorce: If you have been granted a Divorce Order, part or all of your Will is, generally speaking, automatically invalidated. We strongly recommend that you revisit the terms in your Will to update it as necessary.
- Separation: Unlike divorce, separation does not automatically invalidate the instructions and inclusions of your Will, but all the same you may wish to reconsider your Will, especially if your former spouse is included in your current Will.
- Purchase of new asset: If you’ve purchased a new property, a boat, shares or any other asset, it would be wise to consider who you would like to receive these assets in your Will and update accordingly.
- Birth of a new family member: If you have a new child or grandchild in the family, you may want to add them to your Will.
- Death of an Executor or Beneficiary: In the event that your nominated Executor or a beneficiary in your Will passes away it is recommended that you update your Will accordingly. It is generally considered best practise to review your Will when someone you’ve included in your Will passes away.
- Inheritance: If you have recently inherited a large sum of money or a large asset, we recommend that you review your Will as you may prefer to change the division of gifts or money to your beneficiaries, as well as consider if there are any tax implications with this new inheritance.
- Retirement: You should consider planning your future and make your Will accordingly taking into any tax benefits and disadvantages of your assets pool.
Mandatory Change to a Wills signed before 1998
If your Will was signed before 1998, and one of your witnesses was a beneficiary we recommend that you sign a new Will. A beneficiary is now unable to legally witness your Will. Even if you don’t change the contents of your Will this new signing and witnessing process is important to complete.
Similarly, if your Will contained handwritten amendments, best practice is to sign a new Will rather than altering it.
Important factors not covered by a Will
The following factors are not covered by a Will:
- Jointly held property: While property owned with another person as joint tenants cannot form a part of your Will, the share in the property held as tenants-in-common can be passed on to beneficiaries named in your Will. It is also worth noting that, once the other person with whom you own joint property passes away, this will become your sole property and therefore will form part of your Will.
- Superannuation: Superannuation assets are generally held by the trustee of the superannuation fund, but you will generally have an option to nominate a beneficiary of your superannuation benefits. Nomination in such cases will override your Will, unless the nominee is your Estate. If there is no binding nomination, the death benefits will normally be paid out at the trustee's discretion, and this may not follow your wishes in your Will.
- Proceeds of life insurance policies: A nominated beneficiary of a policy shall be eligible to receive the proceeds upon the death of the principal regardless of the beneficiaries named in a Will. It is important to regularly update your beneficiary in your policy.
- Assets held in trust: Assets held in trust cannot be included in a Will and they continue to be held in trust.
- Company assets: While the shares in a company can be distributed by a Will, the assets held by a company cannot be distributed.
An accurate Will that reflects your current circumstances is an important document to have. If this article has prompted you to question the last time you updated or checked your Will to see a) that is still reflects your wishes and b) nominates all the relevant people in your life including both beneficiaries and your executor then now may be a good time for some personal housekeeping.
Our Wills and Estates lawyers can assist you or provide the advice you may you need regarding your Will or your Estate Planning. Contact us today on +61 3 9822 8588 to find out how we can help you.
