Most people assume they've done all the hard work once they have formalised their existing Will.
Importantly however, a Will should actually be considered a living document- meaning they grow and evolve alongside you as your life changes.
This doesn't mean you always need a new Will every time something changes in your life. What it does mean; is that certain life changes require updating your original Will's instructions to keep it in line with your circumstances. For other life changes, you risk your Will becoming not legally valid if you fail to make updates.
In this guide, Safewill explains why it's important to update your Will and how to go about doing it.
There are two different methods to changing your original Will, with each choice offering different benefits, disadvantages and suitability for different circumstances.
Certain life events may also trigger the revocation of your Will, meaning it becomes void and you may need to write a new one. As each of these options requires a separat document and different set of actions- it's important to understand the differences and manage your Will in line with the law.
The easiest way to update a Will is by creating a Codicil. Rather than needing an entire new Will each time you want to make a change, a codicil represents a separate legal document which can be used to make minor changes or additions. This method should be used to create extra instructions that will still work within your existing Will without confusing or cancelling other parts of it.
In the same way as a Will must be signed by the Will maker as well as two witnesses, a codicil is a short document which requires mental capacity, the date signed and two witnesses, to be valid in court.
This method has a variety of functions; for example to change or add an Executor, make a specific gift or bequest or clarify a point in your original Will, for example, if a Beneficiary changes their name after marriage.
Significant relationship changes may require you to create an entirely new Will. This could involve becoming part of a blended family and welcoming a new step child into the mix, or even if your son or daughter divorces and you would like to remove their former spouse from the Will.
Unlike a codicil, a new Will automatically cancels the original document. This requires two witnesses to sign the new legal document with the date, as well as your wishes outlined in writing on family members to receive remaining assets and the executor you want to administer the estate.
A Will can be revoked in a number of different ways, and can sometimes occur as a result of certain life events.
One of the simplest ways to do this is by destroying the physical document - either by tearing it up, burning it or or directing someone else to destroy it. If family members cannot find the legal document after your death, the wishes written in it are unable to be executed.
For this reason, if you intend your Will to guide your estate distribution after death, then it's important to store it in a safe and secure place. Otherwise, destroying the document is a good way to revoke its effect on your estate.
This can also be done by a written declaration of your intention to revoke the document. Some of the triggers which may result in the revocation of a Will are: the creation of a new Will, marriage or divorce.
There is no hard or fast rule about how regularly you should update a Will because it all comes down to personal circumstances. A figure you might see floating around recommends updating your Will every 3-5 years. This is a good basis, but there are also a series of triggers you should be aware of which should create a prompt for you to update your Will at any point. These include:
Your relationship status changes through marriage, divorce or a de facto relationship;
Your spouse dies;
Your Executor or Beneficiaries die or become incapacitated;
You have a new child or grandchild;
You buy or sell property or other significant assets;
You come into an inheritance;
Whilst professional advice can be helpful, updating a Will or writing a codicil can be done without engaging a lawyer. If you are planning to forge ahead on your own you will need to decide if you plan to write a codicil, or revoke an earlier Will and write an entirely new one.
If you opt for a Codicil you will need to follow a certain format, making sure you include certain features and get it signed, to ensure the document is considered valid in court. These are:
Details of the person making the Codicil;
Details of the original Will the Codicil refers to (including its date);
The date the Codicil was written;
Specific reference to the clause(s) in the Will being changed;
Confirmation that the other clauses of the Will remain effective'
An “attestation clause” explaining that the Will was made by the Testator and has been properly witnessed.
If you want to write a new Will without a lawyer you can go with any of the following options:
paper based DIY Will kits from the news agency or post office
state or territory Public Trustee offices that provide a DIY or semi-DIY Will service
online Will platforms like Safewill that help you to create, update and store a Will easily and affordably online.
Not only is it a legal right to update your Will, it's beneficial and sometimes required for your Will to remain legally valid. If you have recently gotten married, had a child or gained access to more money- it's important these life changes are reflected in your Will.
Similarly, a health diagnosis might motivate appointing enduring power to someone, such as a medical power of attorney. Seeking the help of an attorney to navigate the rules of a codicil or statement to revoke can ensure your new or original Will are valid.
Safewill offers an affordable, fixed-see service to create your Will with the help of a solicitor. We ensure you have all the right documents signed, and make it easy to make changes online to reflect any change in life circumstances.
In addition, we can help you write the separate document required for a codicil, and ensure your wishes are valid in the eyes of the law.
To find out more, reach us on 1300 942 586, or start alive chat now, to find out more.
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©2023 Safe Will Pty Ltd, Level 7, 28 Foveaux Street, Surry Hills NSW 2010. Safewill is an online service providing streamlined forms and information. Safewill is not a law firm or a substitute for a lawyer’s advice about complex estate planning issues.