Approximately 52% of all adult Australians do not have a valid Will. However, research shows elderly Australians and people with significant financial assets are the demographic most likely to write a Will, with the key trigger being major life changes or significant cash windfalls.
The positive news is that approximately 22% of those without a Will are considering making a Will. If you are considering making a Will, this article should serve as a useful guide of things to consider in your Will-making process.
Are you unsure whether a significant or life-changing event has impacted the validity of your Will? The following circumstances may require you to review, amend or replace your existing Will.
Events that may revoke or invalidate all or parts of your Will:
- Changing family circumstance, i.e., marriage or divorce, separation, having children or grandchildren.
- Changing financial circumstances, i.e., a large increase or decrease in the value of your assets, receiving a large inheritance or even a change in the structures of the assets you hold.
- Selling of specific gifts i.e., jewelry, vehicles, etc (especially when these have been specifically referred to in your current Will.
- The death or incapacity, i.e., from age or mental capacity or bankruptcy, of an appointed executor under your Will, especially if there is no appointed substitute executor.
- A change in circumstances for a beneficiary under your Will, i.e., relationships or addresses – especially for a foreign beneficiary.
- The death of a beneficiary under your Will.
What can you do to keep your Will valid in changing circumstances?
Is it a small change?
Are you merely changing an executor? Do you wish to make a small specific gift to a beneficiary? Do you want to change an amount given to a beneficiary?
You may wish to consider commissioning a codicil. A codicil is a quick and easy way to make a small update or change to your Will. When the time comes and your executor applies for probate, the codicil and the Will are to be read together as one document.
It is important that your codicil does not contradict or confuse parts of the original Will, as it may render the parts of the Will invalid and gift may not take effect.
One of the other issues in using a codicil, and not simply re-doing your Will for relatively small changes, is that there are then two documents that need to be found by your executor to present for an application for probate.
For these reasons it is often considered best practice to redo a Will in its entirety regardless of how minor the changes may be.
Is it a big change?
Have you had children or grandchildren? Have you lost significant loved ones? Have you had a falling out with a beneficiary?
If you need to make significant or substantial changes to your Will, it may be easier to replace your current Will by writing a new Will. This automatically revokes your old Will. This will also mitigate any confusion with a codicil or multiple codicils.
Who are your beneficiaries?
This is sometimes one of the hardest steps to decide when making a Will. For some testators, it is a simple process – their spouse and their children. For others it is siblings, parents are other family members. Some testators may not even have surviving relatives and choose to leave a bequest to their friends or charities.
When a testator considers selecting their primary beneficiary as someone who is not a direct relative, this may trigger challenges to their Will they have passed away. The Family Provision Act 1972 (WA) is an act of the WA Parliament that allows for certain classes of beneficiaries to challenge a Will. For more information, please contact us.
What if I do not update my Will?
In this circumstance, you may die partially or fully intestate, and your beneficiaries will be at the mercy of the Administration Act 1903 (WA). If this occurs, you may not have your testamentary wishes fully realized when you die, which may result in a costly and lengthy dispute after you have passed on.
What should I do to my previous Wills?
Although executing a new will automatically revokes your previous Will, it is usually recommended, in the interests of avoiding confusion or doubt, that you destroy your old Will once you have properly executed a new Will, although if there is some question over your testamentary capacity or a potential beneficiary having undue influence over the Will-maker, and the old Will is preferred than an intestacy, it may be important to keep both the old and the new Wills.
Lynn and Brown Lawyers encourage anyone who has questions regarding updating or evaluating the validity of their Wills to get in touch with one of our experienced estate planning lawyers. You can contact us at www.lynnandbrown.com.au or by calling 9375 3411.
About the Authors: This article has been co-authored by Garrick Garvey & Manav Patel. Garrick was admitted as a lawyer in 2017 after obtaining a Bachelor of Laws and Bachelor of Business (majoring in Economics) from Edith Cowan University in 2014. Manav is in his final year studying a Bachelor of Commerce with a Major in Business Law and Finance. Manav will commence his Juris Doctor in 2023 at the University of Western Australia.