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Amendment of Wills

A Will is more than a simple document recording your last wishes. It is important that the Will is amended from time to time and kept up to date.

Consideration of a new Will

We suggest that you consider making a new will in case of the following instances:

  • Defacto Couples: You may prefer to revisit your Will, if you have commenced a new relationship.
  • Marriage: If you marry/remarry, your marriage invalidates your Will, unless your Will specifically states that it is made in contemplation of that marriage
  • Divorce: If you have been granted with a Divorce Order, your Will becomes invalid. We strongly recommend that you revisit the terms in your Will to adapt them to include up to date executors and beneficiaries.
  • Separation: Unlike divorce, separation does not automatically invalidate the provisions of your Will. You may wish to reconsider your Will, if your spouse is included in your current Will.
  • Purchase of new asset: If you have purchase a new property, shares or any other asset, it would wise to consider who you would prefer to leave these assets to.
  • Birth of a new family member: You may want to include a newborn such as your child or grandchild in your Will.
  • Death of Executor/Beneficiary: You should always appoint an alternate executor in case your executor passes away. All alternatives must be carefully assessed before signing the Will.
  • Inheritance: If you have recently inherited a large sum of money, we advise that you review your Will as you may prefer to  change the division of gifts or money to your beneficiaries as well consider the tax implications.
  • 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 Will

If your Will was signed before 1998, we suggest that you sign a new Will if your previous Will was witnessed by your beneficiary. A beneficiary is unable to now witness your Will.

Similarly, if your Will contained handwritten amendments, best practice is to sign a new Will rather than altering it.

Factors not covered by Will

The following 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 the Will.
  • Superannuation: Superannuation assets are generally held by the trustee of the super fund or it might include an option to nominate a beneficiary. Nomination in such cases will override the Will. If there is no binding nomination, the death benefits will normally be paid out at the trustee's discretion and may not be as per your wishes in the 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: These 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 Will, the assets held by a company cannot be distributed.

Given the current state of affairs and COVID-19, now more than ever might be an appropriate time talk to us.

At Burke and Associates Lawyers, we recommend you consider your existing Will and if necessary, provide us with your instructions for a new Will instead of signing a Codicil to your previous Will. For more information, please contact Meghan Warren, Director, on mwarren@burkelawyers.com.au, and  respectively, or by contacting our office on +61 3 9822 8588.

Contacts

Meghan Warren

Principal

Meghan Warren

Principal
LL.B GAICD B.Bus (FinPlan)
Meghan is one of the few lawyers in Australia admitted in the State (Victoria) and Federal jurisdictions of Australia, and as an Attorney at Law to the New York State Bar in the United States.

Rohani Bixler

Special Counsel

Rohani Bixler

Special Counsel
LL.B (Hons) BA (PSYCH)
Rohani holds a Bachelor of Arts (Psychology) and a Bachelor of Laws (Honours) from Monash University, and has practiced exclusively in the areas of estate planning, deceased estate administration and estate litigation and disputes since...

Antonela Graso

Paralegal

Antonela Graso

Paralegal
Whilst completing her professional business and law tertiary qualifications, Antonela provides efficient and effective legal support services to our valued teams and clients.

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