Mid Mountains Legal Blog

Handwritten and other informal changes to a Will in NSW

Anthony Steel

Once you have made your Will, it remains in full force and effect until you either revoke (cancel) or change it.

The Scenario

You made a Will when you were single and bought your first house. Your Will appointed your parents as executors and left the whole of your estate to your sister and brother.

Since then, you have been in a long term relationship, had two children, your parents have died and you no longer speak to your brother. You received a significant inheritance from your parents’ estate, have purchased another property with your partner and have accrued superannuation entitlements.

You die unexpectedly. Your sister and brother will receive any assets in your sole name that are dealt with via your Will. Your partner and children are understandably disappointed to miss out on the benefit of those assets. Yes, your partner and children can make a claim against your estate for a greater share but this will cost them time and money during an emotionally difficult time.

The Solution

Update your Will as soon as your personal and/or financial circumstances change.

The Law

Section 11 of the Succession Act 2006 provides that a Will may be revoked:

  1. By a court order;
  2. By marriage;
  3. By divorce (In part);
  4. By a later Will;
  5. By written declaration (executed in the same way as a Will) of your intention to revoke it;
  6. By you or someone in your presence destroying the Will intending to revoke it; or
  7. By you or someone in your presence dealing with the Will in a way that satisfies the Court from its state that you intended to revoke it.
Marriage

A Will is automatically revoked when you marry unless your existing Will stated that it was made “in contemplation of marriage”, in which case, your Will remains valid despite your marriage.

Your Will is not fully revoked if you marry the person to whom you left assets in your Will or whom you appointed to be your executor. In this case, your appointment of the person you married as the executor and the gift to them remains valid, but the balance of your Will is revoked.

Divorce

A divorce does not revoke your entire Will, but it does revoke:-

  1. the appointment of your ex-spouse as your executor, guardian or trustee; and
  2. any gifts you are making to your ex-spouse.

You may nevertheless include a clause in the Will to ensure that, despite the divorce, the appointment or gift remains valid.

The Process

Although you can make written changes to an existing Will, for those changes to be valid, you must:-

  1. have two independent witnesses with you when you make the changes; and
  2. sign to confirm those changes; and
  3. the two witnesses must also sign the Will to say they have witnessed you make those changes and witnessed you sign it.

As you can imagine, this can make the Will confusing and messy. It is preferable to set out any changes in a codicil or a new Will.

A Codicil

A codicil is a supplementary document to the Will which sets out a revocation or addition to your Will. It is often used to make minor changes to a Will such as changing an executor, adding a person, or changing a gift that a person receives. You can make more than one codicil.

If you make a codicil, you must sign it and have it witnessed in the same way as a Will and keep it with your Will.

A New Will

If the changes or additions you want to make to your Will are numerous or complex, it is preferable to make a new Will.

A new Will automatically revokes the old Will in its entirety. In your new Will you can easily and clearly set out your new wishes.

How often should you change your Will?

You can change your Will as many times as you like provided you are mentally capable of doing so.

You may never need to change your Will, but you should review it at least every 2-3 years to make sure it still correctly sets out your wishes on your death. You may need to review it if one of the following life events occur:

  1. You marry, separate or divorce;
  2. Your family dynamic changes, such as children, stepchildren, or grandchildren;
  3. Your financial circumstances change such as receiving a compensation, a windfall or an inheritance;
  4. You buy or sell assets;
  5. Your illness or the illness or death of a loved one.

Revoking a Will without a New Will

If you revoke your Will by destroying it and do not draw up a new Will, your assets will be dealt with by the rules of intestacy set out in the Succession Act (NSW).

The rules of intestacy are a pre-determined list of who is to receive your assets on your death. This list is based firstly on whether you are married and/or in a de facto relationship and if you do or do not have children. If you are not married and/or in a de facto relationship and do not have children, your parents, siblings and/or nephews and nieces may receive your assets on your death depending on who survives you.

What to do now

Contact us to ensure your wishes are carried out and that any changes to your Will are valid.

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