Do you need a Will?

With the new year having just come and gone, now would be a good time to reflect on whether there were major changes that occurred to you over the past 12 months – changes which would require you to seriously consider either making a new Will or updating your existing one.

Have any of the following changes or events occurred recently?

1. Separated/Divorced: If you are separated but not divorced it is important that your Will is updated to reflect your current circumstances. The consequence of you failing to update your circumstances is that if you die, your assets may end up in the hands of your former partner. Upon formal dissolution of marriage, certain aspects of a Will are revoked. It is therefore important for you to consider making a new Will in these circumstances. 

2. Marriage: If you have an existing Will, getting married may revoke your existing Will. To ensure your spouse is cared for as you intend, you should get a completely new Will made. For those who are ‘engaged’, you may instead consider making a Will that is in contemplation of marriage. 

3. You have children: Depending on your circumstances, you may better provide for your children by having testamentary trusts in your Will. There are taxation, asset protection (against bankruptcy and in some cases divorce) and other benefits for having testamentary trusts in your Will. Testamentary trusts are also useful when a beneficiary is either incapable of managing their own affairs or is vulnerable to exploitation, for example, where a beneficiary is disabled or has spendthrift tendencies. 

4. Changing the guardian of your children. A guardian is the person you nominate in your Will to raise your child in the unlikely event that both you and your spouse die. You should ensure you amend your Will if the guardian appointed under your Will dies. This is important to ensure your child is raised by the person of your choice and not by someone appointed by the Court. 

5. Death of your Executor named in your Will: If the person who you have named as your Executor in your Will has died, it is imperative to update your Will, especially when your Will does not name an alternate executor. If your Executor dies before you, and you have not appointed an alternate executor, the Court will appoint an administrator to take the place of the deceased Executor. To reduce the time and costs involved to your Estate, ensure you have a living Executor and alternate executor appointed in your Will at all times. 

6. You change your mind about who you want to inherit your property: Your Will should reflect your intentions at all times, and therefore if you have changed your mind, it is ideal to revisit your existing Will and make the appropriate changes. In doing so, keep in mind the Family Inheritance Claim rules which enable certain persons to make a claim against your Estate where adequate provision has not been made for them under your Will. 

7. You acquire or dispose of substantial or sentimental assets: If you’ve made a specific gift of property in your Will and you subsequently sell the gift, you should amend your Will to remove reference to that gift. Likewise, if you obtain new property, for example jewellery with sentimental value, and you wish to leave it to someone specific, you’ll need to amend your Will to make that wish clear. If you fail to do this the jewellery will form part of the residual of your Estate and is unlikely to go to a particular person. 

8. Separated/Divorced: If you are separated but not divorced it is important that your Will is updated to reflect your current circumstances. The consequence of you failing to update your circumstances is that if you die, your assets may end up in the hands of your former partner. Upon formal dissolution of marriage, certain aspects of a Will are revoked. It is therefore important for you to consider making a new Will in these circumstances. 

This list is by no means exhaustive. It does, however, serve to highlight some of the more common situations that should prompt you to review your Will.