A Last Will & Testament is probably the most important document you’ll ever write in your life. However, there is often uncertainty around when to make a Will or update an existing one. This often results in a person dying without a valid Will (known as dying intestate).
Dying without a Will can cause undue stress for loved ones left behind. So this article explains when you should make a Will, or update an existing one.
Why should I make a Will?
Getting your affairs in order while you are still able to, allows you to make important legal end-of-life decisions now, before it’s too late. However, more than half of Australian adults don’t have a Will.
Some people avoid making a Will because it forces us to accept our own mortality. Therefore, it is often easier to avoid the task than face the grim reality.
Another reason people may not have a Will is because they may not think they have anything of value to leave behind – but this is often not the case. When making an audit of your possessions, take a look around you. Note any furniture; special ornaments, jewellery and other belongings; and any car and money in your bank accounts that you may have. You might be surprised by how much you actually have.
Aside from items of financial value, you could have priceless family heirlooms or sentimental items that would be treasured by your loved ones after you die.
Dying intestate: What happens if you die without a Will?
Dying without a valid Will is known as dying intestate. If you die intestate, your estate will be distributed under a standard formula set out by state government law. However, the allocation may not be what you would have wished. Disputing this in court can be expensive and means less inheritance to beneficiaries.
To avoid unnecessary disagreements, confusion, legal battles, fees and family feuds – make a Will! The Bare Will Kit allows you to make a Will online in minutes, without a lawyer.
When should I update my Will?
Even if you’ve made a Will previously, your circumstances may have changed.
Wills and estate plans shouldn’t be a ‘set and forget’ approach, but reviewed every few years or whenever there is a significant change to your personal or financial circumstances. It’s wise to make a new Will if you get married, divorced, separated, have children, or enter into or end a de facto relationship.
You should also update your Will if you buy or sell a major asset like a house or car. Any items that you’ve listed as specific bequests need to be updated if they are no longer in your possession.
If you - or anyone else named in your Will - changes their name or contact details, you should update your Will. Ensuring information is current and correct makes it easier for your Executor to carry out your wishes.
Although not legally necessary, it’s safer to write a new Will if your witnesses have died since you wrote it, or if your chosen Executor is unable to execute your Will for some reason.
When relationships change, what does it mean for a Will?
Many people underestimate the impacts of big life events. As mentioned earlier, don’t forget to update your Will if you get married, divorced, have children or change your relationship with a person named in your Will.
Marriage will automatically revoke any Will that existed prior to that marriage. If you are unmarried but in a relationship with a partner while you make a Will, it will become invalid once you marry, even if your partner is named as the sole beneficiary. Therefore if you are writing a Will prior to marriage, you can get around this by writing in a contemplation of marriage clause.
When you divorce, your Will is either revoked or the section relating to your former spouse is considered null and void, according to the law in each state and territory except the Northern Territory and Western Australia. After a divorce, whatever you had specified to be left to your former spouse will now form part of your residuary estate - the assets after all gifts are bequeathed and debts, taxes and fees are paid. To ensure that you will not die intestate, and also to provide for any beneficiaries, children or dependants as you wish them to be, it’s important to write a new Will immediately after a divorce has been legally granted.
Separation alone does not revoke a Will. In Australia, you must have been separated from your spouse for at least 12 months before a family court will finalise your divorce. So, if you died before any divorce was finalised, your estranged former spouse would still be bequeathed everything you had specified in your Will.
How do I revoke my Will?
Revoking your Will means that the current Will is cancelled, or no longer valid. The safest way to do this is to make a new Will before destroying the old one, to ensure you have a legal Will at all times and don't risk dying intestate.
A Will can be revoked by writing a legal document stating that you wish your Will to be revoked in whole or in part. The document must be signed in the same way that you sign your Will.
You will also revoke your Will if you tear, burn or destroy it with the intention of revoking it.
Final thoughts on when to make a Will
Having a valid Will is the best way to make your end-of-life wishes known and ensure your chosen beneficiaries inherit the gifts you intended. Reviewing your Will when your circumstances change ensures that the people currently in your life receive what is most precious to you.
We hope this article provides a better understanding of when you should make a Will or when you should update an existing one.
To learn more, visit the Bare Law website or chat with our estate team for a free consultation, on 1800 959 371.
You might also find the following articles useful:
- What is a living will and how to make one?
- Executor of a Will vs Administrator: What's the difference?
- Estate Administration: 10 step guide to deceased estates
This article is not legal advice. You should speak with a legal professional for specific advice on your personal or financial situation.