So you have made a Will to indicate your wishes on your passing. Good!
Did you know that your Will can be changed – not only by you but also by law?
You can elect to change your Will at any time by revoking your previous Will in a number of ways, the most common being executing a new Will. Changing your Will should be considered whenever you acquire property, dispose of property, get married, get divorced or there is a birth or death in the family or otherwise at least review the content of your Will every three to five years.
Your Will can be rescinded by physically destroying the paper by tearing it up or by fire with the express intention of revoking it. If you wish to totally destroy the intentions as set out in an existing Will, you can destroy the Will but make sure someone witnesses you do it so they can confirm your wish or sign a letter confirming your intentions and have it witnessed as you would have a Will witnessed.
It is commonplace for a Will to open with words similar to “I revoke all previous Wills and testamentary acts …” to reinforce the statutory provision. Care should however be taken should you have a Will dealing with assets in other countries as some countries’ laws do not recognise changes unless they are done within their specific requirements.
Your Will can also be revoked pursuant to section 12 of the Succession Act 2006 (NSW) which expressly revokes an existing Will upon your marriage. The only way a Will is not revoked upon marriage is if the existing Will was made “in contemplation of a particular marriage.”
If you do not update your Will after marriage, then your Estate will be distributed in accordance with the Succession Act 2006 (NSW) which will leave most assets to your new spouse. This may not be an issue for a newly married couple but it could give rise to problems when you have made specific allocations of assets including children of a previous marriage in your Will.
Starting a de facto relationship does not revoke a Will but there are certain property rights gained in a de facto relationship akin to a marriage. Care should be taken to discuss and confirm your intentions for the distribution of your assets when you enter into a new relationship.
Divorce on the other hand has no effect on a Will. So, if you separate from your spouse and then get divorced, your existing Will, which may leave assets to your former spouse, or even appoint him/her as the Executor, will be your last valid Will and so acted upon by the Courts. As soon as you plan for the distribution of your assets changes, you need to execute a new Will which expresses your intentions.
The world of Will can be simple or can be very difficult and the readily available “Will Kit” will not always achieve the desired result. Being lawyers, it may sound trite to say “see you lawyer” but having a Will that properly sets out your intentions is invaluable for your peace of mind. So call us today.
