Do I need to update my Will?

Wills are an important legal document, no matter your age. It is a legally binding document which outlines how your assets are to be distributed following your death.  It is important you take the time to ensure your Will gives effect to your wishes.

We suggest that you revisit your Will regularly, as different circumstances throughout your life may give rise to your Will being revoked or invalid.

 Circumstances to update Wills

• Marriage – your Will will be revoked if you marry after the signing of your Will. Revocation will not occur if your Will expressly contemplates your marriage.
• Divorce – does not automatically revoke your Will. Your Will will read as if your former spouse has predeceased you. However, in some circumstances, this may cause your Will to be invalid.
• Enter or end a de-facto relationship.
• Have children, including adopted or foster children.
• Have grandchildren.
• Your Executor or Trustee appointed in your Will dies, becomes unwilling to act or becomes unsuitable due to age, illness or distance.
• A beneficiary under your Will dies.
• You sell of giveaway assets that you had specifically gifted in your Will.
• Your financial circumstances change, including if the entities or structures you hold assets in change.

Real life example from our founder

We caught up with our founder Grahame Goldberg a few weeks ago to discuss his experience regarding a specific technicality about Wills in NSW that most people forget – Wills can be voided if made prior to a marriage unless Court action intervenes.

Grahame mentioned that during the 50 years that he practised law, he often thought about how surprised sometimes his clients were when he explained to them their legal position, especially with Wills.

Following is his example in the field of succession:

Most of us have “Wills”. Those that don’t should make one and I suggest with the assistance of a professional. You would be well advised to seek assistance to review your Will every few years.

What if you made a Will many years ago, leaving your property, “to my husband Joseph if he survives me and if he doesn’t then to my two children in equal shares.”

Your husband some years later dies and you inherit the whole of his assets. Your lawyer tells you there is no need to make another Will.

After some years you, to the surprise of your children, remarry a reasonably wealthy man, and a few years later you die.

Your property comprises a residence previously jointly owned by you and your first husband, valued at about $1,600,000, cash in the bank plus investments of about $900,000.

Your two children find your Will and take it to a lawyer expecting to receive about $ 1,250,000 each because that’s what your Will says should happen if you survived Joseph and your children survived you.

They are told, that because the Will was made before you remarried, you have died “intestate” meaning you have in accordance with the laws of NSW died without a Will!

That’s not a typing error, marriage occurring after a Will is made completely revokes the Will unless the Will specifically states it is made in anticipation of a marriage.

So, unless a Court action intervenes from a family provision claim, in this fictional scenario, your estate would be distributed as follows:

Most of it goes to the second husband, being a statutory legacy, plus all personal effects (jewellery, furniture, car, etc.) plus one half of the cash balance. Your two children would share the balance which would be $225,00 each.

It’s important to remember – if you personally make a simple amendment to your Will incorrectly, it could lead to disastrous results, such as revoking or invalidating the entire document.

More info on the NSW Wills, Probate and Administration Act 1898 No 13 and Australian Wills ACT 2012.

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