Updating a Will in Tasmania

Some people mistakenly believe that they only make out a will once in their lifetime. In fact, estate planning is an ongoing process. A person should update their will throughout their lives to reflect changes in their personal circumstances. It is particularly advisable for a will-maker to review and revise their testamentary arrangements after major life changes such as marriage and divorce, and after the birth and death of close family members. Any updating of a will must comply with the statutory provisions in the Wills Act 2008 for the document to remain valid and binding. This article explains how to legally update a will in Tasmania.

What Is A Will?

A last will and testament is an important document stipulating a person’s final wishes. A will provides direction on how a person’s deceased estate should be distributed after their death and who should be in control of the estate administration.

Many wills are written to account for future life changes. Still, each person’s circumstances are unique, and even a carefully drafted document might no longer reflect the testator’s wishes. It is vital that a testator review their will regularly to make sure that it remains up-to-date and true to their intentions. One of the most common reasons for updating a will is to reflect changes in a testator’s asset portfolio. If the testator fails to allocate specific assets, then the estate may be partially intestate. In that case, these unaccounted for assets will be dealt with under the provisions of the Intestacy Act 2010. The will must also be updated when listed assets are given away or sold.

It is good practice to review testamentary arrangements at the same time each year. One way to remember is to schedule a review at tax time when the testator is freshly reminded of their financial circumstances. At this time, the testator can update their will to reflect their current assets.

There are practical benefits to updating a will regularly. It is difficult for an executor to administrate an estate without an updated list of assets. These instructions can also be attached to the will as an informal memorandum. The testator can leave detailed instructions for the executor on how to discharge liabilities and distribute the remaining assets of the estate.

Additionally, a testator should update their will after major changes in their life that affect the validity of testamentary documents. For example, when a testator marries, the terms of their will are invalid unless it was drafted in contemplation of marriage. In the same way, a divorce invalidates any appointments or bequest clauses in the will that refer to their former spouse. A testator should also update their will when there are new births in the family. These revisions should make provision for children and ensure that there is no confusion over the language of the will. For instance, if a testator has an existing clause in their will leaving a gift to “my granddaughter”, the birth of a second granddaughter will create ambiguity over the meaning of the bequest. There are other circumstances that should prompt the updating of a will. Particularly, it is essential that a testator revise their will upon the death of a beneficiary or executor of the estate. If the testator fails to update their will after the sole executor passes away, the Supreme Court of Tasmania will appoint an administrator to assume responsibility for the deceased estate.

Without A Will

If someone dies without a valid will (that is, they are intestate), their assets are distributed according to statutory rules rather than their own wishes. In that case, the Supreme Court appoints an administrator to handle the intestate estate. Not having a valid will complicates the deceased estate administration and makes it much harder for the deceased’s family. Even if the testator has a will, they may die partially intestate if their will is not up-to-date.

The Process Of Updating A Will Tasmania

After the testator has their will in hand, it is tempting to make changes informally by writing amendments on the document. Minor mistakes (such as a small spelling change) can be corrected by hand in the text as long as the testator and witnesses sign or initial the alteration. However, once a will is executed (signed), it cannot be legally updated by crossing out or writing in new clauses. The best way to make even a small amendment to a will is to make a legally binding postscript (codicil). A codicil is meant to be read in concert with the existing will, allowing a testator to remove or add clauses to their will. This codicil is only valid if it is prepared according to the formal will-making requirements. For larger changes or to avoid any ambiguity, the testator should draw up an entirely new will.

A testator should consult with a solicitor when updating their will. An experienced wills and estates specialist can identify any potential problems with new clauses and the execution of the document. Informal revisions can invalidate the will or obscure the testator’s intent. It is best for the testator to prepare ahead of time, gathering any documentation and deciding their testamentary wishes before meeting with their solicitor. In this way, most wills can be updated quickly, giving the testator peace of mind that their affairs are in order.

Our team can assist you with preparing or updating a will to ensure that your loved ones are provided for according to your wishes. Contact the solicitors at Go To Court Lawyers to find out more, or to begin the process of updating your testamentary arrangements.

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 Armstrong Legal in 2020.
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