24 Apr When and how to update your Will
When and how to update your Will
At Rigoli Lawyers we generally recommend that you update your Will at least every 10 years and at least review every 5 years. We anticipate that within every 10 years, your life will have undergone a large number of changes, so it is also likely that your wishes will change over that time.
It is also recommended that you change your Will as soon as any major life event takes place to ensure that your Will reflects your current wishes. This is extremely important because events such as marriage, re-marriage, divorce, separation, birth or adoption of a child, purchase of a large asset, lending money to a family member or friend, getting involved in a new business or trust or company can all have effects on the distribution or challenge of your deceased estate and the assets you controlled when you were alive.
What happens to my Will after I am Married?
In Victoria, marriage invalidates any Will made prior to the marriage. If you get married it is imperative that you update your Will otherwise your assets will be dealt with under the laws of intestacy, as if you had no Will. The laws of intestacy distribute the first $451,909 of your estate to your spouse, and the remainder gets split between your spouse and any of your children (if there are additional assets or surplus money).
It is important that you make a Will as soon as you remarry. You can also make a Will in contemplation of marriage before the actual wedding, to ensure that if anything happens your new spouse is covered.
What happens to my Will after I am Divorced?
If you had a Will during the marriage, but then you divorce, it does not necessarily invalidate your existing Will. This may not be what you want to happen as you do not want your ex-spouse to have anything to do with your deceased estate. Generally, the specific clauses in the existing Will relating to your former spouse receiving a benefit would no longer apply but it could be possible that they remain executor and trustee depending on the type of Will made. Most Wills have a lot of provisions that refer to their spouses and therefore the Will could become completely useless if the particular clauses about your ex-spouse are invalidated.
What happens to my Will if I am Separated, but not Divorced?
It is also important that you update your Will if you have separated from your partner but not yet divorced. Divorce, property settlement and parenting agreements can sometimes become a long process and so updating your Will may not be the most important issue on your mind.
However, it is critical that you update your Will to ensure that your assets are distributed to the people you want them distributed to in the event that you suddenly pass away. Otherwise, the person you separated from would be legally entitled to what you had given them in your Will.
It is especially important if you have re-partnered, to minimise the risk of legal disputes between your new domestic partner and your soon to be ex-wife. If you happen to forget to update your Will and your estate is left in this situation, it then becomes more complex to sort out and can result in a number of factual and legal disputes over your estate, resulting in enormous legal fees and court fees being taken out of your estate assets before distribution to the beneficiaries.
How to update your Will
If you need to update your Will it is important that you never try to update the Will yourself unless you are a lawyer experienced in the area of Wills. We have seen a number of cases where people have amended their Will after legally signing and caused the entire Will to be invalid. If you cross out any lines or handwrite in a line after correct legal execution and witnessing, this almost always invalidates your Will so any bequeaths you have made under that Will do not need to be followed.
What if I only want a small change to my Will?
If you need to make a minor change to your Will contact a Wills and Estates lawyer who can help you by either creating a codicil (which is a supplementary document that amends the contents of an existing Will) or preparing a fresh new Will with your new instructions.
Alternatively, you can start the process online as well here.
Where do I stand?
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