Once your final Will has been signed and executed, it is easy to place it into storage and then forget about it altogether. As a general rule, Wills should be reviewed every few years. However, did you know there are a number of life events that warrant the immediate updating of your Will?
What happens if I pass away without updating my Will?
Generally speaking, passing away with an outdated Will increases the risk of your wishes not being effected. If your Will cannot operate fully or at all due to gifts no longer existing or beneficiaries predeceasing you, you run the risk of beneficiaries missing out, or even a partial or full intestacy. The laws of intestacy may result in people such as estranged family members inheriting against your wishes. Hence, passing away with an outdated Will increases the likelihood of a claim against your estate for provision or further provision. Updating your Will following major life events reduces the chance of costly litigation after you pass away.
New marriage or registered relationship
Many people are unaware that your Will becomes invalid as soon as you are married or register your domestic relationship! Section 20 of the Wills Act SA 1936 outlines Wills will be revoked in both of these circumstances. The exception is if your Will was made ‘in contemplation’ of future marriage to a specific person. Your Will must identify the person you are contemplating marriage to by name. Contemplation of marriage in general is insufficient to avoid revocation, therefore, it is best to update your Will as soon as you are married.
If you have not registered your de facto relationship and pass away without naming or providing for your de facto partner in your Will, they will need to apply to the Court for provision from your estate. Firstly, your relationship must be legally recognised. This is determined by assessing factors such as the duration of your relationship, your mutual commitment to a shared life and your degree of financial interdependence. If the relationship is recognised by the Court, your de facto partner can continue with the claim under the Inheritance (Family Provision) Act 1972, but updating your Will to ensure they are correctly identified and provided for reduces stress and expenses following the death of a loved one.
Subsequent children or step-children
The addition of a child to the family is an exciting time. However, many parents forget to review their Will to see if it is necessary to update to include subsequent children, whether biological, adopted or step-children. It is important to ensure your estate planning is completed correctly so no one you wish to benefit is left out unintentionally.
Divorce or conclusion of a de facto relationship
Unlike marriage, divorce or the conclusion of a de facto relationship does not automatically revoke a Will. If your relationship has recently ended, it is important to consider the impact of section 20A of the Wills Act. Section 20A outlines that any role held by your ex-partner (such as executor, trustee or guardian) or any interest or grant made to them in your Will, is revoked when the relationship ends. Therefore, it is recommended you update your Will following separation to ensure it is still effective and operates in accordance with your wishes. For example, if you have appointed your former partner as an executor and pass away without updating this, the revocation of such an appointment by Section 20A would mean your Will does not have an executor. Similarly, if you have left the whole or a portion of your estate to your former partner, the revocation of this gift may result in a partial or complete intestacy, and your estate would be divided in accordance with intestacy provisions. This may not be in accordance with your wishes, and hence it is best to update your Will as soon as possible.
Sale or acquisition of a significant asset
If you purchase a significant asset, such as a home or a large share portfolio, it is important your Will clearly stipulates how you would like to distribute this after you pass away, particularly if you wish to gift it to a particular person. Similarly, if you sell a significant asset, you should review your Will especially if it is a specific gift made out to a person. The acquisition or sale of assets will significantly alter the size of your estate and so other bequests may also require review.
Restructure of finances
If you have recently restructured your finances, for example by setting up a trust or a business, it is imperative you review your Will to ensure its operation has not been affected. This is important as only personal assets held in your sole name or in a discrete share as tenants in common can be gifted under your Will (these are known as ‘estate assets’). However, following a restructure, you may find that an estate asset is converted into a non-estate asset (having been ‘moved’ into a trust or other business structure) and therefore, it can no longer be gifted under your Will. If you have made gifts under your Will thinking that trusts or business assets are considered part of your estate, it is critical you discuss your circumstances with a lawyer and update your Will if appropriate.
Making a superannuation nomination
Superannuation is often a significant asset, especially when coupled with insurances that you may have taken out. If you have made a binding superannuation nomination to someone, the superfund trustee would be obliged to follow your direction. However, if you have only made nominations, the trustee will have discretion to pay the benefit to a spouse, domestic partner or other dependants. There are laws and policies that govern their decision making but if you want to be certain where the benefit is paid, you will need to make a binding nomination.
Superannuation is generally a non-estate asset and cannot be gifted under a Will. The exception to this rule is if you make a binding nomination to your estate, thereby turning the superannuation benefit into an estate asset. Even if it is not an estate asset, it is still important to consider superannuation when making a Will as it may affect how you wish to distribute other assets in your estate. You should always seek legal and financial advice when dealing with superannuation, as it is often a significant asset with tax advantages to be gained if dealt with appropriately.
How can Hume Taylor & Co help?
If you recently began or ended a relationship, had more children, sold or purchased an asset, restructured your finances or made a superannuation nomination, contact our Adelaide office on (08) 8223 3199, our Millicent office on (08) 8733 2500 or our Whyalla office on (08) 8645 7666 to update your Will today.
This blog was written and researched by Law Clerk Alice McKay.