Wills are vital to ensure that all your affairs are appropriately managed, and all your wishes are upheld. However, while establishing a Will is important, it’s not a ‘set and forget’, it is equally as important to ensure your Will is maintained. Updating these documents regularly every time you experience a notable life change, including, but not limited to, marriages, babies, divorces, and so on and will ensure that your wishes are carried out if the worst should happen.
It is easy to demote the importance of a Will or place it as a 'someday' task, that many of us will never get around to. However, while we advise you to always have a Will in place, in times of considerable uncertainty like what we are currently experiencing, establishing peace of mind for you and your family has never been more important.
We here at Voice Lawyers recommend that you review your Will every 18 months. This ensures that we can keep track of all recent financial, relationship, and situational changes and ensure that your Will is as aligned with your values and desires as possible.
Ultimately, for your Will to survive and still be relevant when it is implemented, regular reviews and updates are essential.
The following article delves into an explanation of maintaining your Will to promote peace of mind for all parties involved.
First things first, what is a Will?
A Will is a document that enables your assets to be divided in a way that serves your wishes, after your death. It is a legal document but is not compulsory to have; although highly recommended to the confusion of your estate's distribution after you pass. If you die without a Will you will leave what is called “intestacy”. This means your assets will be distributed in accordance with the law. In these circumstances, your assets might not be distributed to the people you would choose, and you have no control over who distributes the assets.
It is advised that you seek legal guidance when establishing and updating your Will, to ensure it is as relevant and strong as possible to serve your wishes when the time comes for its execution.
How do I know if I need to update my Will?
There is an extensive list of reasons that should see your Will be updated. With regular revisions, all notable life changes can be kept track of in an attempt to make your Will as relevant as possible. Below is a list of just some reasons that would require your Will to be adjusted.
end of a de facto/registered relationship
new family members (children or grandchildren)
beneficiaries on your existing Will pass away
executors or guardians in your existing Will are unable to act anymore or pass away
financial circumstances change
you wish to change the people named in your Will
any other notable or significant life changes occur
Can my Will be challenged?
Yes. Your Will can be challenged if there have not been adequate provisions provided in the Will that enable proper maintenance, education or advancement in life of the eligible person. Your Will can also be challenged if the Court believes provisions must be made for the aforementioned maintenance, education or advancement. A person who believes they have not received adequate provision under the Will and that they will suffer hardship as result can file a summons in the Supreme Court. This application must be made within 12 months of the date of death.
Your will can also be challenged and may not be valid, if you did not have capacity at the time you signed it, or it was made under the influence of others. A person with capacity will know what the will is he or she is making and realise in general terms the amount and type of assets they are granting and are capable of weighing ‘moral claims’ that should be considered. If a person assisting the will-maker benefits greatly from the will that person may have to prove there was no undue influence or pressure in the making of the will.
Who can challenge my Will?
de facto partner(s)
your children (including adopted)
your household members
wholly or partly dependant persons on you
persons whom you have a close personal relationship with
What are adequate provisions?
The phrase 'adequate provisions for the proper maintenance, education or advancement in life' continually appears throughout this article and through all Will discussions. But what does it mean?
'Adequate provisions' are court considerations as to whether an eligible person can contest your Will if they feel it is not correct. However, for the contester to have grounding, the variety 'adequate provisions' that are considered in Court, include:
nature and duration of the relationship
size and nature of your estate
contester's current and future financial resources, earning capacity, financial needs
the extent of obligations or responsibilities owed by you and whether you are liable to support them
financial circumstances of any other persons living with the eligible person
physical, intellectual or mental disability of the contester
contributions made in regards to your estate or your welfare from contester
provisions you may have made for contester
evidence of your intentions (such as statements)
whether contester is wholly or partly dependent on you
relevant Aboriginal or Torres Strait Islander customary law,
any other related matters.
How can I attempt to avoid this?
Making your intentions clear is vital when establishing or updating your Will. To ensure your intentions are clear and your Will has the best chance of surviving challenges, it is highly advised that you seek professional advice.
Overall, it is crucial to view your Will as a living document that needs to adapt along with your ever-evolving life. However, these changes must be made alongside legal advice to ensure that your Will is as implementable as possible when the time comes for it to be executed.
This article is not intended to be used as legal advice; containing general information only. If you wish to establish, update or find out more about your Will, Voice Lawyers can help with specific circumstantial advice. Ensuring you have a Will that best reflects your wishes.
If you have any questions or issues regarding this article or another Wills related matter, you can get in contact with us via email firstname.lastname@example.org or by calling us on (02) 9231 8602
Alternatively, you can book an appointment with Director Kayte Lewis here: http://portal.voicelawyers.com/
If you are interested in reading about Family Law issues in the midst of COVID-19, check out our article here.