Why Would I Need To Update My Will and Estate Plan?

It is important to update your will and estate planning documents regularly to best ensure they are legally valid and up-to-date. Having a will is the best way to ensure you have a say on who benefits from your estate after your death. Where a person dies without a valid will, their estate will be distributed according to legislation (through what are referred to as the rules of intestacy) rather than their wishes. Having an up-to-date will can best ensure that the terms of the will still reflect your wishes so that your assets go to the people that you want. An out-of-date will might result in assets being left to people whom you no longer want to benefit, for instance, a specific gift that is no longer necessary. An up-to-date will can help ensure that your wishes are respected after your death and save your family costs and stress following your passing. An out-of-date will may increase the risk of a claim against the estate, which could result in unnecessary delay and costs to the estate. Some of the reasons why you may review and update your estate plan or write a new will are detailed below.

1. Changes in Family Circumstances

A will may require updating following a major life event, a significant change in your life, or where your family circumstances change. Examples include:

• a marriage or divorce.
• a de facto relationship.
• a pregnancy or birth of a child or grandchild.
• a beneficiary attaining the age of 18.
• the death of a family member or beneficiary.

2. Changes in Financial Status

Changes to a person’s financial circumstances can change the size and nature of the assets that fall within their estate. Examples of a change in a person’s assets that may warrant an update to a will include:

• the purchase of an asset.
• the receipt of an inheritance.
• a marriage or divorce.
• a financial windfall.

Where a person has acquired an interest in a family trust or company since their last will, they should consider whether they need to do a new will to deal with these interests. If you have experienced a change in your assets or the assets that you control, you should review your will to ensure it remains current and suitable.

3. Changes in Personal Wishes or Relationships

A will may require updating following a change in a personal relationship. During our lives, people may come and go and this may create a need to revoke an old will and prepare a new will. For instance, personal conflict or an argument may mean you no longer want a particular person to benefit under your will and instead want to name a new beneficiary. In some cases, however, the court has the power to override the testator’s wishes and effectively change the terms of a will. It is therefore important that all wills and related documents are prepared by experienced wills and estate lawyers who are able to advise you of the risk arising from any disinheritance.

4. Changes in Legal or Tax Regulations

Good estate planning involves ensuring your testamentary documents comply with the relevant laws and regulations at the time. As tax minimisation is often a key objective in estate planning, it is important to ensure your estate plan is current and incorporates any relevant changes or updates in the law to best ensure favourable tax outcomes.

5. Appointing New Executors or Trustees

If you wish to change the executors who will administer your estate after your death but either adding, removing or replacing executors, you will need to prepare a new will (or codicil).

How Often Should I Update My Will?

We are often asked how often should a person update their will. We recommend you review your will every three to five years – or sooner if changes in your personal circumstances warrant a review to consider whether it reflects your current circumstances or needs updating. If your will is no longer suitable or fit for purpose – you should prepare a new one. Once you sign the new document, the original document should be stored in a safe and secure location.

Consider Updating Your Will if you are Getting Married or Divorced

In NSW, it is important to review your will and update it if you are getting married or divorced, as there are provisions in the law that may automatically revoke parts of a will upon marriage or divorce. An estate planning attorney can assist with this, taking into consideration your entire estate plan to ensure your assets are protected during certain life events like marriage or divorce.

How Do I Update My Will in NSW?

A person wanting to update their will should contact an experienced wills and estate lawyer who will be able to provide legal advice on risks arising from testamentary intentions and prepare a will that formalises their intentions. The lawyer may also be able to store the will and other related estate planning documents.

What is a Power of Attorney in NSW?

A Power of Attorney is a legal document within which a person (the principal) can grant power to another person (the attorney) to make decisions in relation to legal and financial matters on their behalf. A General Power of Attorney is where it is made for a specific purpose or period of time but ceases to operate if the principal loses the capacity to make decisions for themselves due to illness, injury or aging. Whereas an Enduring Power of Attorney continues to operate in the event, the principal loses the capacity to make decisions for themselves. Where a person wants to appoint an attorney to make decisions for them in the event they lose the ability to make decisions for themselves (i.e. due to dementia), an Enduring Power of Attorney may be appropriate.

How Often Should I Update My Power of Attorney?

We are frequently asked how often you should update a Power of Attorney. As with a will and related estate planning documents, we recommend a person review their Power of Attorney at least every 3 to 5 years to factor in any change in life. If the Power of Attorney is no longer suitable or fit for purpose – steps should be taken to update it.

What Are the Legal Requirements for a Valid Will or Codicil in NSW?

For a will to be valid, it must be signed by the person making the will and witnessed by two or more witnesses. The witnesses should not be beneficiaries under the will, as this may impact their right to inherit. If you are making a new will or want to update an existing will, you should contact a lawyer to ensure the will is prepared in accordance with NSW law.

Reviewing The Beneficiaries of Your Will and Estate

Family and business circumstances change constantly, and you may have many reasons to review the beneficiaries of your will – not just who they are but how they will benefit from your estate. For example, a wills and estate lawyer can talk you through the options of putting assets in a family trust or company or structuring your will in a way that gives the beneficiaries tax advantages.

Plan for the Future – Contact Our Wills & Estate Solicitors for Help with Updating Your Will

Good estate planning can help best ensure your assets go to those you choose and ensure your wishes are best adhered to after your death. If you have questions about your estate plan or get advice, contact our estate planning team on [email protected] or 1300 414 844 for a confidential and obligation-free initial consultation. Disclaimer: the information in this article relates to NSW law and is general information only. It does not constitute legal advice and should not be relied upon. If you have a question or legal issue we recommend you contact a lawyer and obtain legal advice that takes into account your specific facts and circumstances.