Most people know that a valid Will determines how their assets are dealt with after they are gone. Wills generally provide for the appointment of a trusted executor/s and the leaving of gifts to chosen beneficiaries. They may also appoint guardians for minor children and give direction for specific funeral and burial arrangements.
When to review your Will
Many people make a Will, arrange for it to be safely stored and then forget about it. However, in many situations reviewing your Will is just as important as preparing it, particularly when events occur and your Will no longer reflects your wishes. Your Will should be reviewed when your personal or financial circumstances change. The following events might prompt you to review your Will.
The Succession Act 2006 (NSW) revokes a Will when the testator marries but does not revoke a gift to a person to whom the testator marries nor the appointment of that person as executor. Marriage, however, may void other parts of the Will. Wills made ‘in contemplation of marriage’ remain effective when the marriage (to the person nominated in the Will) occurs. This avoids statutory provisions that might otherwise void certain parts of the Will because of marriage. If you have married since preparing your Will then it may be time to review it. Even if the Will was made in contemplation of marriage to your present spouse, if some time has passed since preparing it, certain other terms of the Will may no longer be desired.
The Succession Act 2016 (NSW) provides that gifts to a former spouse upon divorce are revoked as well as the appointment of a former spouse as executor. A Will should always be reviewed on separation from your spouse or de facto partner to take account of new circumstances. Bear in mind also that many partners are separated for some time before finalising their divorce.
Birth of a child
Obviously, the birth of a child will warrant revision of your Will to ensure that the child is adequately provided for. Your Will can be drafted to distribute assets equally amongst your children, even those born after your Will is made.
Death or ill health of an executor
You may have appointed an executor/trustee of your estate who is no longer alive, ageing, mentally or physically unwell, or who have moved away. In these circumstances, you might consider appointing a new executor. Your Will can provide for a substitute executor if your appointed executor is unable or unwilling to act. There is no limit to the number of executors you may appoint. Your executors should be capable of administering your estate in accordance with your wishes, which is often carried out under the guidance of a solicitor.
Death of a beneficiary
A gift to a beneficiary who dies before, or within 30 days of the testator, may fail unless a contrary intention is stated in the Will. If the beneficiary was a child of the deceased then the Succession Act 2006 (NSW) provides that the deceased child’s children will instead take the gift. If the testator has no children and a substitute beneficiary is not nominated the gift falls to the residuary estate. This can have unintended effects. A Will that nominates a beneficiary who has passed on should be reviewed to ensure that it still has the desired effect.
Disposal of a specific gift.
A specific gift is clearly identified and separate from other property of the estate; such as a prestige motor vehicle. If you sell or dispose of such an asset after you make your Will then that gift will fail. The result is that the intended recipient of the gift may receive nothing at all or a much lesser share of the estate than what you intended. This may have a significant effect, particularly if the asset is of substantial value.
Acquisition of interests in a company or partnership
Property owned by a company cannot generally be disposed of by Will, however, the shares in a company may be gifted. If you acquire an interest in a partnership you should consider what happens to that interest when you die. Most partnership agreements set out what happens when one partner dies and how that partner’s share of the partnership is distributed. New business interests should always prompt reviewing your Will.
Increased wealth, potential challenges to a Will, vulnerable beneficiaries
Your Will may incorporate a testamentary trust to provide for minors, protect beneficiaries under legal incapacity, safeguard beneficiaries’ assets from creditors or family provision claims and provide certain income tax advantages. If you would like these protective measures incorporated in your estate planning and the value of your assets warrant the administrative and accounting costs of a testamentary trust then it is worthwhile discussing this option with your solicitor.
Life is unpredictable and changes inevitable. For better or worse life changes are likely to impact upon your estate planning. For good measure, you could diarise to review your Will each time your tax return is prepared. Remember that your superannuation, binding death benefit nominations, appointments of power of attorney and enduring guardians also form part of effective life and estate planning. These should also be regularly reviewed.