Update a will to avoid unintended outcomes

By B Stead

Why update a will?

Updating a will might seem a troublesome chore, but circumstances can change from the time it was made.  The changes might produce unintended and unwanted outcomes in the event of death.  Therefore reviewing a will is important to keep its contents in line with intentions.

Regularly reviewing your will every few years or so, in light of changes in your life, is worth doing, as life events and matters such as those outlined below can affect a will.  Everyone’s situation is different so in all cases seek professional legal advice from a solicitor providing services in this area.

Matters which can impact a will include:

1.  Relationships

  • Marriage – a will is generally revoked (cancelled) when you marry, unless your will contains a clause that the will was made in contemplation of that marriage.
  • Commencing a de facto relationship, personal relationship or domestic relationship with another person, whether or not in the same household.  In domestic relationships law, (where applicable), a domestic relationship can mean a personal relationship.
  • The ending of a relationship, a marriage, a divorce affects a will and carries legal responsibilities and obligations.
  • Review family provision and inheritance arrangements from time to time for the  management of any potential issues.
  • Others may come to live in the same household – perhaps a full-time carer in case of illness, or grandchildren, following some calamity.

2.  Identification – name changes

If you have changed your name or if anyone named in your will has changed theirs.  Also don’t overlook whether someone in your will is usually known by a nickname or alias instead of their proper name, as this should be recorded for clarity.

3.  Beneficiaries (heirs and successors) – those given something in a will

  • Birth of a child or grandchild, children have been adopted or fostered.
  • Birth of a child, adoption and they have not been provided for in the will, similarly with guardian arrangements.
  • Guardian arrangements – children have grown and a guardian is unnecessary.
  • Or for a young family with small children, a guardian is being considered.
  • A beneficiary has commenced professional practice, or running a business, and it maybe worth reviewing asset protection issues for them in receiving an inheritance.
  • Relationship changes may resulted in a blended family with step-children.
  • Adult children have left home and working, no dependent students.
  • A beneficiary has come into great wealth.
  • A beneficiary has suffered an illness, accident and become disabled requiring extra provision.
  • A beneficiary has or is about to go bankrupt, or become insolvent.
  • A beneficiary has adopted a spendthrift lifestyle.
  • Death – a beneficiary has died – this is particularly important if anything was left to them specifically in the will.

4.  Personal Representatives – executors and trustees

  • A marriage or relationship has ended and the appointment of a spouse or partner as executor/trustee is no longer appropriate.
  • Due to illness or some other reason an appointed executor/trustee is no longer suitable.
  • An executor/trustee may no longer wish to act or is not in a position to do so.
  • Death – an executor/trustee has died.
  • An executor/trustee has become ill or for whatever reason unable or unsuitable to act.

5.  Property, assets and financial matters

  • Whether there has been a sale or disposition of any specifically described property, real or personal, referred to in the will.
  • If the family business has been sold, or undergone some restructuring together with other entities, perhaps as part of establishing or changing a business sucession plan, individual share holdings may have changed.
  • Assets have been purchased in new entities, such as unit trusts in which the units are owned by individuals.

Updating a will is often part of updating an overall estate plan, in consultation with a solicitor and other professional advisers, as circumstances require.

6.  Changes to the law

Typically changes to the tax laws, social security (Centrelink) arrangements, family law and superannuation, but other areas may be affected.

How often to review a will depends on individual situations.  In the absence of any particlar life event, some people like to review their will as a matter of course, around the time they are doing their tax, since they are consulting accountants, tax and financial advisers.  For others it maybe until something happens.  Nonetheless taking some time to go over your will on a regular basis is a good idea, and in consultation with your solicitor.

BHS Legal
13 August 2014

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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Header image: B Stead 2014.  Sunset from Ubirr in the east Alligator region of Kakadu National Park, Northern Territory.  Kakadu NP was inscribed by UNESCO on the World Heritage List in 1981.