- You should regularly review your Will to ensure it matches your current wishes
- Important reasons to update a Will include divorce, selling a house or moving into aged care
- Do not make any changes without legal counsel, otherwise, they may not be legally binding
Research shows that roughly half of the adult population has a Will in place, with most people opting to make one due to major life changes like health or assets.
It is a helpful family document that will hopefully divide your assets equally for family, friends and any other beneficiaries listed. You can read more about Wills in our article, ‘Do I really need a Will and last testament?’.
However, what if your current intentions or circumstances are not reflected? Perhaps you have not updated it since the sale of a property or a major relationship change. This could lead to issues once you do pass away.
To avoid any unwanted contestation or debate, your Will should be a dynamic document that is regularly revised and updated when necessary to reflect key life changes.
Making legally binding changes is not always straightforward, though, and you need to be aware of the relevant requirements in your State or Territory.
Reasons for making changes to a Will
There are numerous reasons for altering or updating your Will. Generally speaking, you should make changes when there is a major change to your assets, relationship status, or choice of beneficiaries.
For example, you should change your Will when you:
- Purchase or sell major assets, such as a car, house
- Make a change to your investments, such as a business or stock market shares
- Receive inheritance or money from family members
- Move into a retirement village or residential aged care home
- Go through a divorce, separation or marriage (in some States and Territories this will void any existing Will you have)
- Want to change beneficiaries
- A new beneficiary is born, such as a grandchild
- Are diagnosed with a serious illness
By changing your Will when any of the above occurs you can hopefully avoid family drama, legal disputes and ongoing tension. More information is also available in our article, ‘Creating a strong estate plan’.
How often should a Will be updated?
As those life events can occur at any moment it is important to remember that you may have to alter or update a Will at any time. It should remain a priority if you experience any major life changes.
There is no need to update your Will if there are no changes in your life but regardless it is worth reviewing your Will at least every five years. That way you can be reminded of any changes you might not have previously considered.
You may find the five-year break between reviews fits perfectly with either updating or drafting a new Will that best reflects your current circumstances. Otherwise, it will be ready to update when major changes like a house sale occur.
Is it best to update a Will or make a new one?
Experts warn that if you were to add new amendments or change details in a current Will there is a chance it could be contradictory and cause confusion, or the new changes might not be legally binding.
Therefore, it is recommended that you update a Will by making a new one and explicitly outline that an old Will is revoked.
Depending on the State or Territory you live in the creation of a new Will may automatically revoke the old Will, rendering it legally null and void. Any Will can also be revoked by physically destroying it although it is recommended you speak to a solicitor or Public Trustee before destroying any legal documentation.
Updating your Will
While there are some unique requirements for updating your Will in certain States and Territories, overall, Australia has a series of uniform policies that are in place to ensure changes are legally binding when made.
If you are updating your Will, it is best to do this in the presence of a solicitor to ensure it is done properly and is legally binding. Providing your own changes without legal guidance could impact the validity of your Will if they are not done properly.
To make the appropriate updates and changes you can add a postscript called a codicil to your Will. This is a new document featuring amendments and updates to the original Will.
It is best for small changes that are easy to understand otherwise you do run the risk of leaving legally unclear directions after your death.
To be legal, the codicil must be produced in the same way as the original Will; in the presence of a solicitor of your choice or the Public Trustee, signed in writing and witnessed by two people. Once completed you must keep the codicil with the original Will to ensure they are both read together.
You should avoid creating multiple codicils as this can lead to increased confusion. Instead, consult a solicitor if you have to provide a second amendment to an existing Will as it may be best to draft an entirely new document.
As mentioned above, there are unique laws in some States and Territories when it comes to updating a Will. They are outlined below to provide you with more information.
Australian Capital Territory
In the ACT, the Public Trustee can assist with creating a Will and reviewing it, but they cannot make changes on your behalf. You will need to contact a solicitor.
More information about Wills can be found on the ACT’s Public Trustee and Guardian website.
In addition, marriage or divorce will automatically revoke the Will, meaning you must update it in either case.
New South Wales
In NSW you can change a Will through a Solicitor while you can also book an appointment with the NSW Trustee & Guardian to update your Will.
Marriage will automatically revoke any Will, whereas divorce only impacts parts of the Will that relate specifically to the divorced party.
In the NT, the Public Trustee can update Wills for specific people, including those who have already made a Will with the Public Trustee, have named the Public Trustee as their executor, or hold a pension concession.
You can find more information on the NT’s Public Trustee website.
Meanwhile, marriage or divorce automatically revokes any Will.
The QLD Public Trustee is available to prepare and update Wills. You can find more information on the QLD Public Trustee here.
In QLD divorce or marriage may automatically revoke a Will, but not in all cases, as you can create a Will specifying that divorce should not impact what a former spouse receives upon your death.
However, if you have appointed a spouse as an executor of your Will, that will be revoked upon divorce regardless of what is outlined in a Will.
QLD also recognises civil partnerships and de facto relationships in the same light as marriage, meaning the beginning or end of those types of relationships has the same effect on a Will as marriage or divorce.
More information on how marriage or divorce impacts a Will in Queensland can be found here.
SA’s Public Trustee can update a Will for eligible customers only, that is concession card holders or people who access Centrelink services. More information is available through the Public Trustee website.
Meanwhile, In South Australia, marriage will automatically revoke an existing Will unless the marriage was clearly mentioned. Divorce does not revoke your Will, but the former spouse will have their rights or distributions revoked.
The Tasmanian Public Trustee is available to update a Will, and you can find more information here.
Marriage or divorce will revoke a Will, however, if specified it may only impact certain parts of a Will that relate to a current or former spouse.
If you do not have the funds to access a solicitor, the State Trustees provide an alternative avenue to creating or updating a Will in Victoria. More information on the State Trustees services is available here.
Marriage in Victoria automatically revokes a Will unless the marriage was clearly outlined in the Will when it was originally created.
Divorce does not automatically revoke a Will, however, it takes effect as if the former spouse has already died before you, and it is recommended to seek legal advice upon divorce.
WA’s Public Trustee is available to draft or update Wills that nominate the Public Trustee as a sole executor or substitute executor; otherwise, you will need to use a solicitor to make any changes.
More information on how the WA Public Trustee can help you is available here.
In WA, Wills created before February 9, 2008, will not be revoked by divorce, while those made after that date will be automatically revoked unless special clauses are included in the Will that specifically mention either marriage or divorce.
It is best to seek legal advice ahead of a marriage or divorce to ensure your Will remain legally binding or not.
Do you make regular updates to your will? Tell us more in the comments below.