We regularly talk to our estate planning clients about the importance of having a proper estate plan in place before it's too late. After all, nearly 60% of Australian adults have a Will, and they ensure your wishes for your assets are known before your death. [1]
However, simply having a Will in place doesn’t always ensure that your estate will be handled according to your current wishes.
For example, we recently helped a client update their estate planning by drafting a new Will after not updating their estate plan for 20+ years. A lot changes in 20 years, and their assets and personal position had substantially changed in that time. Whilst their former Will was properly drafted and was a legal document, had they passed away without updating their Will, it would have raised disputes between surviving family members as it did not address new assets they had obtained during that time.
Let's explore when you should revisit your Will, the consequences of not updating it, and how to ensure that any updates you make are valid.
Why Keeping Your Will Updated Matters
A Will outlines your wishes regarding the distribution of your property and assets after your death. It’s important to ensure your Will properly reflects your current circumstances and intentions, so your estate is administered as you wish.
Regularly reviewing and updating your Will ensures that it remains valid and aligned with your changing personal, financial, and family circumstances. Without reviewing or updating it regularly, your Will could become at best ineffective or at worst invalid, leading to complications for your loved ones.
When Should You Review Your Will?
Whilst you can review your estate planning at any stage in your life, here are some key milestones when you should consider reviewing and updating your Will:
Marriage or De Facto Relationship
Marriage automatically revokes a Will unless it was made in contemplation of the marriage. This is because any new spouse has an automatic claim to your estate, and it's generally expected that they will be included as a beneficiary.
Divorce or Separation
Significant changes in marital status necessitate a review. Unless a Will explicitly states otherwise, a divorce will automatically revoke any provisions made in favour of a former spouse. This may not always align with your needs or wishes depending on the nature of the divorce or if there are any children you share.
Learn more about this by reading our in-depth article by clicking here.
Children and Grandchildren
The birth or death of family members may require changes to your beneficiaries or how specific assets are distributed. In addition, consider the marriage and divorce of your children or grandchildren when reviewing your estate planning.
Acquisition or Disposal of Assets
Significant changes to your assets, such as purchasing or selling a house, receiving substantial financial assets (e.g. lotteries, inheritance), disposing of substantial assets (e.g. as part of a property settlement or family law matter) should prompt a review. Loans and other formal financial agreements are also important times to review your estate planning.
Death or Incapacity
If a person named in your Will passes away or loses capacity, you may need to revise the Will to properly reflect this and avoid disputes between surviving beneficiaries and/or executors.
Insolvency
Where your liabilities exceed your assets, you should update your estate plan accordingly. You should also immediately seek financial advice, as further documents, agreements, and information may be required so your estate is properly handled.
Other Life Events
Everyone is different, and other life events and milestones are a good indicator that it is time to review your estate planning.
As a general rule, you should review your estate every 2-5 years to ensure it is still accurate and reflects your current wishes.
Consequences Of Not Updating Your Will
Failing to update your Will can result in adverse outcomes that do not reflect your current wishes. This can include assets being given to family members, friends or government that you otherwise would have intended for someone else. This can lead to family disputes, the breakdown of relationships, and extensive delays to the administration of an estate that generally takes a heavy emotional, physical and financial toll on all involved.
In other situations, particularly in circumstances where a Will has been completed by the Testator themselves (e.g. a DIY Will Kit), or is otherwise an informal Will that does not meet the legal requirements, you may find that a court will determine you have died intestate.
Under the Succession Act 1981 (Qld), a person has died intestate if they pass away without a valid Will. This can happen even if a Will exists but has been revoked or invalidated due to non-compliance with formalities and legal requirements. This might include things such as physical damage to the document or hand-amendments to the Will.
Dying intestate complicates estate administration. The executor or a family member must apply to the court for Letters of Administration, a process that is often longer and more expensive than obtaining a grant of probate.
How To Properly Update Your Will
It's important to note that reviewing and updating your Will are not the same thing. Whilst you may not update your Will in circumstances where your existing Will is accurate and reflects your wishes, you don't know when your loved ones will rely on it. Regularly reviewing it, even if not updating it, is critical.
Updating a Will isn’t as simple as crossing out or adding new text. Such amendments can render the Will invalid as noted earlier. Instead, a new Will is required.
You may also have heard of a Codicil, which is another document that makes minor changes to a Will, such as the spelling of a name or the removal of a beneficiary or specific clause. Whilst codicils are still accepted, they are becoming less popular, and we generally find the drafting of a new Will is more straightforward and simpler for clients. Potential complications can also arise from having multiple codicils attached to a single Will.
DIY Will Kits can also lead to issues. Though they may appear cost-effective, they often don’t account for complex circumstances and are more prone to errors that can invalidate the Will or invite disputes. For a detailed breakdown about why we hate DIY Will Kits, read our recent article by clicking here.
How We Can Help
When it comes to drafting and updating your Will, professional legal advice is essential to avoid later disputes, and to ensure it properly reflects your current assets and wishes.
Given that a Will is one of the most important legal documents you will create, seeking expert assistance is crucial. From just $175 (Inc. GST)*, our lawyers can help you build a comprehensive estate plan to ensure your loved ones are protected when you die. Learn more by clicking the button below.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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References
[1] Cheryl Tilse et al, ‘Having the Last Word? Will Making and Contestation in Australia’ (University of Queensland, 2015)