Is my will still valid and when do I need to update it?

Posted on Apr 17, 2019 by Liam Tobin   |   Categories: Wills & Estates

A common question asked is whether a client needs to update their will based on the age of the document. A will does not need to be updated merely based on age, but rather based on the answer to the fundamental question:-

Does my Will properly contain my current and future wishes?

If the wishes or circumstances of the willmaker have changed since the most recent will was made, it may be important to determine whether a new will is required to ensure that the intentions of the willmaker are properly covered by a current will.

Changes in wishes are often the result of a change in relationships or the growth of a family, such as having children or grandchildren, or the passing of a family member. A good will can often anticipate some of these changes by noting who will be appointed in a role or receive a gift if the initial person named is unable to satisfy that role.

However, in order to answer the question:- Does my Will properly contain my current and future wishes, a person must also understand whether their last will may have also been previously revoked in part or in full.

It is most often the case that a person revokes their will in the process of preparing a replacement will. This revocation ought to be stated in the new document and is pursuant to section 11 of the Succession Act 2006 (NSW).

A person may also intentionally revoke their will pursuant to section 11 by making a written declaration of intention, or by destroying or directing another person to destroy their current will with the intention of revoking it.

The Supreme Court of South Australia recently made an interesting finding in the estate of Gareth Hughes-Roberts that a later Thai will which did not specifically revoke previous wills, and only dealt with Thai assets did not revoke a former Australian will, based on evidence that this was the intention of the testator.

The wishes of the testator in this case were paramount in determining whether the will was revoked, however the revocation of a will can also occur without the intention or even knowledge of the testator.

Certain events in a person’s life can have the effect of revoking parts or the whole of a will previously prepared without the person’s knowledge that their will has been affected.

The marriage of the willmaker can act to revoke their current will, unless made in contemplation of marriage. As further set out in section 12 of the Act, any appointment or gifts left to the person to whom the willmaker was married at the date of their death will also survive this revocation.

The divorce or annulment of the willmaker can act to revoke any clauses in their current will that act to appoint their former spouse as executor or any gift in the will pursuant to section 13 of the Act, unless contrary intention appears in the will.

The Court may make orders altering or revoking the will of a person who is a minor or lacks testamentary capacity pursuant to section 18 of the Act.

When taking into account the above considerations, if the ultimate answer to the question:- Does my Will properly contain my current and future wishes is no, a person ought to take steps to prepare a will that does.