Is it time to review your will?

March 19, 2021

Did you make your will 5, 10, 20 maybe 30 years ago and haven’t looked at it since?  Then it’s definitely time to dust it off!

Making a will should not be a once in a lifetime event.  Your will needs to be regularly reviewed to ensure it continues to reflect your wishes and takes account of any changes in your personal or financial circumstances.

There may also have been legal changes and developments that your original will did not take into account.

When do I need to review my will?

 We recommend reviewing your existing will if it was made more than 5 years ago, or if any of the following events have occurred in your life:

1. You have married, separated from your spouse or divorced. Marriage generally revokes (i.e. cancels) existing wills, unless the will expressly states that it was made in contemplation of marriage.  Divorce does not revoke your entire will but does revoke any provisions appointing your former spouse as executor, trustee or guardian, or any gifts made in favour of your former spouse.
2. You have started a de facto relationship, separated from your partner or ended the relationship. The end of your de facto relationship revokes any will provisions appointing your former spouse as executor, trustee or guardian, or any gifts made in favour of your former spouse.
3. A beneficiary of your will has died, been declared bankrupt or ended their marriage or de facto relationship.
4. An executor of your will has died or become incapacitated.
5. Your executor is the Public Trustee or a trustee company (as some take a commission of up to 6% on gross assets and gross income plus charge estate administration expenses).
6. The birth or adoption of your children and grandchildren.
7. Your child/children have reached 18 years of age (as they could now be appointed as your executor).
8. You have purchased property, acquired other assets or otherwise had a significant change in your financial circumstances – particularly if the value of your assets has increased.
9. You have formed a new trading entity or assetholding entity, i.e. a company, trust or partnership.
10. You have moved to a new state/territory or overseas where the law is different to the state/territory you made your existing will in.
11. There have been changes in state or federal legislation which have come into force and may affect some of your assets and bequests (e.g. capital gains tax legislation).

How do I update my will?

There are two ways to change your will:

1. Revoke your existing will and make a new one. This is the option we most often recommend.  The law changes over time, often in significant ways, so the provisions in your will may be out of date or not provide the best financial outcome for your family.  Will documents have also become far more proactive over time, so that when we draft a new one we are looking ahead at a wide range of options to protect the interests of you and your family.
2. Make a codicil. This is a separate document which makes changes to certain provisions in the will.  To be legally valid, a codicil needs to comply with the legal requirements for making a valid will (e.g. signature of two witnesses etc).  This is generally only recommended where fairly simple changes are required to a relatively recently prepared will.

For more information on reviewing and updating your will, please contact a member of our Estate Planning team at Fox and Thomas.