As we embark on a new year and reflect on the one just gone, many of us will make promises to ourselves to make 2024 better than its predecessor. These might involve taking steps in a positive direction for our health, finances or relationships, but what about taking positive steps to ensure that what we leave behind reflects our circumstances. This article provides some events that may have happened in 2023 that should trigger you to review, and possibly revise, your estate planning.
Marriage or Divorce
The Western Australian Wills Act 1970 provides that where a marriage or divorce has occurred subsequent to the execution date of a Will, that Will is revoked. If you have been a party to a marriage or divorce or have recently been engaged since you prepared your estate planning documents or separate from your marriage partner you need to prepare a new Will, unless your will contains a contemplating that marriage or divorce clause.”
Births of children or grandchildren
The arrival of a new family member is one of the most wonderful and exciting experiences. In all this excitement however, other important matters can be put to the wayside and forgotten. With the birth of a new family member, please remember to review your Will to see whether they will be provided for in the event of your death. If your Will includes a clause naming the specific children to which gifts or distributions are to be made, you should consider updating your Will to include the newborn.
Acquiring and disposing of significant assets – e.g. your home
This is an extremely important event to consider revising your Will around, particularly if your Will contains specific instructions regarding the asset you have disposed of. These instructions could include what to do with the proceeds of the sale of the asset, or in the case of a home, an option for a person to purchase or a right to reside.
If your will contains provisions that provide for the housing of a relative following your passing, you should revise your Will to make new arrangements for that person.
Similarly to the above, if you have acquired a new asset, you may want to include specific instructions as to how you would like it to be dealt with.
If you have recently started a new business or your current estate planning does not contain a clause that deals with your ongoing business or its property, it will be included with the rest of your estate and will likely be sold by your executor, as this is the easiest option. If you wish for your business to be carried on following your death or for assets of the business to be distributed to specified beneficiaries, please contact us about updating your estate planning and possibly preparing a company power of attorney.
A company power of attorney, empowers a named person, people or company, the attorney, to exercise any powers ordinarily exercised by the directors of the company to conduct the affairs of the company. If you would like to discuss the preparation of a company power of attorney, please contact our office.
Immigrated to Australia
If you have recently immigrated to Australia, with estate planning documents prepared in another country, it is important to ensure that these documents have been validly executed and will be granted probate by the Supreme Court of Western Australia when the time comes. As Australia is a party to the Convention providing a Uniform Law on the Form of an International Will 1973, there are certain requirements for a Will drafted in another country to be valid here. If you would like us to review your current international estate planning documents to ensure they fit these requirements, please contact our office. Alternatively, you can engage Lynn & Brown Lawyers to prepare a new Will which still reflects the same wishes, to the degree that they are consistent with Western Australian law.
Events warranting exclusion of beneficiaries
Unfortunately, relationships and family dynamics can break down or certain events can occur that may make you want to exclude a certain beneficiary from your current Will. If this is the case, please seek legal advice on how to properly exclude a beneficiary from your Will. Under the Family Provisions Act 1972 (WA), certain classes of beneficiaries and dependants are able to challenge the distribution of your estate despite what your will says.
Death of beneficiaries
Where a beneficiary to your estate predeceases you, your estate will be divided in accordance with the proceeding clause in your Will. For instance, in most Wills, the primary beneficiary will be their spouse and the secondary beneficiaries will be the children of the testator (Will maker), and if one of them is to predecease the willmaker, the amount they were entitled to will be distributed to their children. If entitlements under a Will fail, the estate will be distributed in accordance with the Administration Act 1903 (WA). To avoid this, we recommend ensuring your Will covers how your estate is to be distributed if your first and second stage beneficiaries die.
Death of executors
In the event that your primary executor dies, your Will should have a clause providing for an alternate executor to be automatically appointed in their place. If you are unsure whether your Will contains such a clause, we recommend that you review it to determine this. If your Will does not contain this clause or at your date of death your named executors are unwilling or unable to act, another person, usually a beneficiary of the Will, will need to apply for Letters of Administration to distribute your estate.
Remember as we step into 2024, life changes and your estate planning should change along with it. We recommend you review your Will every 3-5 years to ensure it still reflects your circumstances, however if you have undergone or can foresee significant changes to your circumstances as outlined herein, we urge you to review your Will as soon as possible. Lynn & Brown Lawyers are here to assist you with this process and ensure your Will is doing exactly what you need it to.
About the Authors: This article has been co-authored by Sam Richardson and Steven Brown. Sam undertook his studies at Murdoch University fresh out of high school in 2020 at 17 years old, keen to pursue and interesting and challenging career. Since November of 2022, he has been with Lynn and Brown as a clerk but following the conclusion of his studies, he will be staying with our Wills and Estates team as a Law Graduate. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.