Amending an existing Will and when it’s appropriate to update your Will

A Will is more than a simple document recording your last wishes, it’s also vital that your Will is reviewed and updated from time to time to make sure it stays up to date with your circumstances.

Consideration of a new Will

We suggest that you consider making a new Will in case of the following instances:

• De facto couples: If you’ve commenced a new relationship, you may need to revisit your Will to consider how this relationship fits in with your wishes.
• Marriage: If you marry, your marriage will automatically invalidate your Will unless it specifically states that it is made in contemplation of that marriage.
• Divorce: If you have been granted a Divorce Order, part or all of your Will is generally automatically invalidated. We strongly recommend that you revisit the terms in your Will to update it as necessary.
• Separation: Unlike divorce, separation does not automatically invalidate the provisions of your Will, but all the same you may wish to reconsider your Will, especially if your former spouse is included in your current Will.
• Purchase of new asset: If you’ve purchased a new property, shares or any other asset, it would wise to consider who you would like to receive these assets in your Will.
• Birth of a new family member: If you have a new child or grandchild in the family, you may want to them in your Will.
• Death of an Executor or Beneficiary: You should always appoint an alternate Executor in case your initially appointed Executor passes away, and all alternatives must be carefully assessed before signing the Will. Nevertheless, it’s generally a good idea to review your Will when someone you’ve included passes away.
• Inheritance: If you have recently inherited a large sum of money, we recommend that you review your Will as you may prefer to  change the division of gifts or money to your beneficiaries, as well consider the tax implications.
• Retirement: You should consider planning your future and make your Will accordingly taking into any tax benefits and disadvantages of your assets pool.

Mandatory Change to a Will

If your Will was signed before 1998, we suggest that you sign a new Will if your previous Will was witnessed by your beneficiary. A beneficiary is unable to now witness your Will.

Similarly, if your Will contained handwritten amendments, best practice is to sign a new Will rather than altering it.

Factors not covered by Will

The following are not covered by a Will:

• Jointly held property: While property owned with another person as joint tenants cannot form a part of your Will, the share in the property held as tenants-in-common can be passed on to beneficiaries named in the Will. It is also worth noting that, once the other person with whom you own joint property passes away, this will become your sole property and therefore will form part of your Will.
• Superannuation: Superannuation assets are generally held by the trustee of the superannuation fund, but you will generally have an option to nominate a beneficiary of your superannuation benefits. Nomination in such cases will override the Will, unless the nominee is your Estate. If there is no binding nomination, the death benefits will normally be paid out at the trustee's discretion, and this may not follow your wishes in your Will.
• Proceeds of life insurance policies: A nominated beneficiary of a policy shall be eligible to receive the proceeds upon the death of the principal regardless of the beneficiaries named in a Will. It is important to regularly update your beneficiary in your policy.
• Assets held in trust: These cannot be included in a Will and they continue to be held in trust.
• Company assets: While the shares in a company can be distributed by Will, the assets held by a company cannot be distributed.

Given the current state of affairs, now more than ever might be an appropriate time talk to us.

At Burke Lawyers, we recommend you consider your existing Will and if necessary, provide us with your instructions for a new Will instead of signing a Codicil to your previous Will. For more information, contact our Wills and Estates lawyers on +61 3 9822 8588 or email HERE.