Leaving such a testamentary document raises important questions. Did the deceased approve of the contents of what is a draft will, and so intended it to be their last will – but simply didn’t get around to executing it according to the legal formalities? Or were they unsure and wanted alterations? Can an unsigned will, that is an unexecuted will, or informal will, as lawyers often call them, even be admitted to probate by the Court? The Court’s dispensing powers are discretionary – it depends on the circumstances in each case.
Under Australian succession law, marriage generally cancels an existing will, subject to some exceptions.
Getting married is an important life event. There is a lot to organise, in addition to making arrangements for the wedding ceremony itself.
However, if research on will making in Australia is any guide, the making or updating of existing written instructions as to what is to happen on death following the changed personal circumstances, probably won’t feature highly on the list of things to do.
Yet attending to making a valid will taking into account changed or soon to be changed circumstances is important. If not, the rules of intestacy would apply on death, and these may not produce the desired outcome.
Illegitimate children or ex-nuptial children are those born outside of marriage. Changes to the law mean that the inheritance rights of illegitimate children are equal to those of legitimate children. So this means they can inherit. What happens if no will was left, (an intestacy) either by an ex-nuptial child or their parent? Who inherits then? Can an ex-nuptial or illegitimate child be eligible under succession law to make a claim on a deceased parent’s estate? More →
A codicil is an additional document used to make minor changes, amendments or alterations to an existing will. The codicil document must be signed in front of witnesses in the same way as for a will, see below. Once completed the codicil is kept with that will. More than one codicil may be made.
Examples of a minor change are when you want to change your executor/s or trustee/s, appoint a new one, add a specific gift (legacy) to a particular person or delete it. Lawyers tend to prefer that a new will is made so as to avoid potential difficulties down the track with interpretation, and the extra costs that arise in resolving them.
Codicil to an existing will or make a new will?
As described above a codicil is a short document which may be used to make a minor change to an existing will. If the will was made a long time ago, it may be best to make a new will altogether so there is no inconsistencies. Seek professional advice.
This article looks at:
What is a codicil?
Making a legally valid codicil
Codicils must refer to the date on the correct 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.