The Right Time to Review Your Will

Written by Sam Ferraro

So you were told to make a will and have done so, the question is when should you review the will and update it. If any of the following events occur then you should review your will:

Marriage

Unless a will has been made in contemplation of marriage, then marriage automatically revokes the will. Therefore, a will made prior to marriage is invalid. If you recently married you should review your will.

If you are getting married and are making a will, make sure you tell your lawyer that you are getting married.

Separation

The breakdown of any relationship is cause for review of a will. In many cases when couples separate, they no longer want a former partner to benefit under their will. This requires a review, not only of a will, but also of superannuation death benefit nominations as well as checking the manner of holding of assets since jointly owned assets will pass automatically to a surviving co-owner.

What does this mean?

Assets which are owned as joint proprietors pass to the surviving owner on the death of a co-owner regardless of what the will states. If assets are held as tenants in common then the deceased can direct the passage of their share by their will. How do you hold your assets?

Divorce

Divorce is always a trigger for reviewing the will because any gift made to a former spouse is revoked by the operation of section 14 Wills Act 1997 (Vic). Unless a contrary intention appears in the will, section 14 operates to read the will as if the former spouse predeceased the testator. This applies in respect of any gift, power of appointment and also to any appointment as executor and/or trustee.

New relationships

Entering into a new relationship requires a review or reconsideration of previous Wills. The testator needs to consider whether provision ought to be made for a new partner or whether the new partner acquires rights by operation of law if nothing is done. Two years of cohabitation will entitle the partner to the right to a Family Provision Claim as a domestic partner. That partner may also acquire rights earlier than two years if contributions to assets have been made giving rise to a resulting trust.

Once again, superannuation nomination of beneficiaries need to be considered.

Change in financial circumstances

The acquisition of a new asset or a windfall gain may require the making of a new will. This could be either because a larger asset pool may justify dealing with the assets in different ways or because of windfall gain may be a result of an inheritance with the desire to ensure that those assets continue along family lines rather than passing to a spouse.

Changes to family such as

o birth of children;

o birth of grandchildren

this requires a review of a will to ensure that later born children or grandchildren are not excluded from the operation of any trust created by the will

o death of family members

o illness of family members

o change to legislation such as superannuation rules

o regular review due to passage of time-say 3 to 5 years

All of these situations require you to consider making a will or to reconsider an existing will. If you are not sure and wish to talk to us about your will, we will be happy to consider your situation.