Updating a Will (Vic)

It is important to understand that good estate planning involves regularly reviewing and updating a will. If this is not done, the will is not going to reflect the will-maker’s changing familial and financial circumstances or take into account relevant changes to the circumstances of persons named as executors and beneficiaries. The testator should refer to the Wills Act 1997 when updating their will in order to ensure that it remains validThis article explains why it is important to update a will and the rules that must be observed in the process in Victoria.

Updating A Will In Victoria

While a testator might be tempted to alter their will by simply making a notation in the margin of the document, any changes to a will should be made in consultation with a lawyer. Otherwise, the will may be invalidated or the testator’s intent may be obscured and their wishes left open to interpretation. An experienced lawyer will not only identify problem areas in the will, they will also know the right questions to ask to ensure the testator accounts for all of their assets.

How Often Does A Will Need Updating?

A testator should review their will every year to account for any changes that have occurred. The person will find it easy to remember changes that happened over the previous twelve months, such as births or deaths in the family and the acquisition or sale of property. A good practice is to tie the annual review to a particular date, such as the first day of the new financial year.

Updating A Will After Certain Milestones

As well as annually reviewing the terms of their will, a testator should update their will after any major milestones such as marriages. Marriage revokes the will of a testator unless it is clear that the will was written in contemplation of marriage. Equally, a testator should update their will if their relationship ends, as a divorce negates any appointment of or bequest to the former spouse in a will. As children are born and people marry into the family, a testator may want to revise their will to provide for newcomers or clarify the current language to avoid confusion.

It is also advisable to update a will after major changes to a testator’s financial circumstances. As the testator acquires significant property or investments, there need to be clear instructions about the future distribution of these assets. If this does not occur and the testator dies in possession of assets that are not mentioned in the will, this could result in partial intestacy. In that case, the unrecorded assets will be administered according to the intestacy provisions of the Victorian Administration and Probate Act 1958. Likewise, a will should be updated if an asset mentioned is sold or is no longer in the testator’s possession. If there are assets included in the will that the testator no longer possesses, it will be harder for the executor to collect the assets of the deceased estate and a specific bequest may no longer be possible. 

Updating a will is also essential to account for changes in the lives of those involved. If a beneficiary or executor passes away and the will is not updated, this can needlessly complicate the administration of the deceased estate. If the sole executor named in a will predeceases the testator, an eligible person will have to apply for appointment as administrator. In the event that a beneficiary dies before they can inherit from the estate, the bequest will revert to the residual legatee.

It is also important that a testator considers changing their will if their appointed executor or a beneficiary is declared bankrupt as the appointment of a bankrupt executor could result in legal challenges and a beneficiary may lose the bequest to their trustee if they are bankrupt.

Procedure For Updating A Will

There are several ways in which a person can update a will. The most straightforward method is for the testator to make a new will, which will automatically revoke the old one. It is standard for the wording of a will to state that the new will revokes all previous wills the testator has made. Creating a new will reduces the potential for confusion.

Alternatively, a testator can draft a codicil to their existing will. This is a postscript that is a legally binding way to remove or add clauses to the document. The codicil must be executed in the same way as a will. This option is best used for smaller changes to a will that can be clearly understood in the context of the existing will, as it is important that the codicil does not lead to confusion. It must be attached to the current will so that the will and the codicil are read and understood together.

It is essential that a testator updates their will periodically as their circumstances change. 

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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