Leaving an unsigned will – second thoughts or intended last words?

unsigned will, informal will, invalid will, unexecuted will, testamentary intentions, will-makingSometimes an unsigned will is left in situations where the willmaker, in consultation with lawyers, has been in the process of making a new will, but died before the requirements to make a valid legal document were completed.

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.

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Getting married – does it affect a previously made will?

Under Australian succession law, marriage generally cancels an existing will, subject to some exceptions.

MarriageGetting 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.

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Illegitimate children, ex-nuptial children – can they inherit?

illegitimate children, ex-nuptial children, contest a will, challenge a will, inheritance, inherit, what is an exnuptial childIllegitimate 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?
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Codicils: what is a codicil, making minor changes to a will

Updated 12 June 2020.

What is a codicil to a will?

A codicil is a short, additional document used to make minor changes, amendments or alterations to an existing will. To be legally valid the codicil document must be signed and executed in front of witnesses in the same way as for a will. Once completed the codicil is kept with that will.  More than one codicil may be made.  Unless the change is minor and straightforward it is preferable to make a new will. 

‘Codicil’ comes from Latin meaning a letter or note.  It was also referred to as a ‘little book’ in 17th century England. But the idea of making a testamentary addition began in the ancient Roman civil law.  Later in early English law it started being used in situations where a testator didn’t have time to make a proper solemnised will and testament.   

Together with the will document  a codicil also being a testamentary document only operates when you die. 

Codicil to an existing will or make a new will?

A codicil can be a cost-effective way to make a minor change to a will.  such as substituting an executor.  However if the will was made a long time ago, it may be best to make a new will altogether so there is no inconsistencies.  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 and delay that arise in resolving them.  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
  • Revoking part of a will by a codicil
  • Reviving an earlier will by a codicil
  • Meaning of ‘will’ includes a codicil
  • How must codicils be signed?
  • Storing a codicil
  • Potential problems
  • An undated, unsigned ‘homemade’ codicil 

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Update a will to avoid unintended outcomes

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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.

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