Insights

If you have made a will, you have taken an important step in preserving your property for your family or other beneficiaries.  We recommend that you review your will every two years and consider whether it is affected by a major event that may revoke your will or otherwise affect it. We will explore some common events that can affect a will in this article.

Keeping your will up to date – major events that can affect your will

Changes to your family, assets or to the taxation laws can affect your will. In particular, you should consult a lawyer if:

• you change your name, or anybody named in the will changes their name.
• an executor dies or becomes unwilling to act as executor or becomes unsuitable due to age, ill health or for any other reason.
• a beneficiary (someone who has been left something in the will) dies.
• you have specifically left property which you subsequently sell or give away, or put in trust or into a partnership, or which changes its character or name. This applies particularly to specifically bequeathed shares in a company which restructures its share capital.
• you marry or divorce.
• you enter into or end a domestic partnership or personal relationship;
• you have matrimonial difficulties.
• a child of yours is born or dies, a child is adopted or fostered, an adopted or fostered child dies or a fostering terminates.

Marriage and its impact on a will

Generally, if you marry or remarry, the marriage revokes your will unless the will is expressed to be made in contemplation of that marriage. In Western Australia, the law requires that the will has to be made in contemplation of a specific marriage and not in contemplation of marriage generally.

Divorce and its impact on a will

Generally, a divorce revokes your will unless it is made in contemplation of divorce. If you are contemplating divorce and intend that the divorce not affect the will, then the will must express the contemplation of divorce and the intention that the will is not to be affected by it.

Ending a domestic partnership or personal relationship can also affect your will and your legal obligations.

How to update your will?

You can update your testamentary intentions by making a new will or via a codicil.

There are laws around establishing testamentary intention which affects whether a will is recognised as valid after the death of the testator/testatrix.  As such, it is important when after a will is executed, that you do not add to or delete from the will yourself. Always consult a solicitor if you want to change or revoke your will, or even before you write a list, letter or other document which relates to your affairs after your death because even the simplest changes must be done correctly or they may have disastrous results. The danger is that it may not be clear whether the document is intended to be testamentary in nature (that is, a will or codicil), and litigation about the status of the document may result.

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