It is very important to create a valid and legally enforceable will. To avoid common pitfalls in drafting a will, the assistance of a lawyer that has experience in this area will be invaluable, particularly if you have assets that are substantial, and beneficiaries to whom these assets will eventually be administered. However, your situation may be constantly shifting and circumstances changing, which may mean that you will need to regularly update or revoke your previous will so that it always reflects your most up-to-date intentions.
Prior to actually signing a will, the person for whom the will is being made can modify, edit, or add any words specified in the provisions of the will. These modifications should also be initialled and signed in the margins of the will. If they are not signed in the margins, they should be signed as close to the actual changes as possible for the changes to take effect. Also, make sure these changes are witnessed by two witnesses, and ensure these witnesses are not beneficiaries of the will, as that could either nullify the provisions relating to the beneficiary, or invalidate the entire will.
How wills can be updated after signing
The normal practice for changing a will after it has already been signed is with a codicil. A codicil is an additional or supplement document that explains, modifies, or revokes a will or part of one. A codicil will become effective when it meets the requisite criteria that apply to a valid will.
One thing to take note of is that the codicil should not include a clause that seeks to cancel all previous wills, as this may result in the cancellation of the will that the codicil is supposed to update.
How to revoke or cancel a will
In each state, different statutory rules may apply to the cancelation or revocation of a will. Nevertheless, a will may typically be revoked or cancelled in any of the following ways:
- by clearly stating an intention to revoke a will;
- by creating a new will;
- by getting married; or
- by getting divorced.
How does marriage or divorce affect a will?
In general, when a person who has a will decides to get married, the previous will is automatically revoked, except for any wills that are actually created in light of the upcoming marriage, i.e. includes provisions in contemplation of, and relating to, the marriage.
Under section 12 (2) of the Succession Act 2006 (NSW), the relevant legislation relating to wills in NSW, there are several circumstances under which a will is not revoked because of a marriage. These include the following:
- when the will contains a provision for the person married to the deceased testator (the person who dies with a will), i.e. when the husband or wife is provided for in the will and the will was validly created;
- when the will dictates that the person married to the deceased testator is to be appointed as either advisory trustee, executor, trustee or guardian; or
- when property under a will would not pass to the executor, administrator or NSW Trustee and guardian if the power of appointment were not exercised.
In terms of how getting a divorce may impact a will, we can look at the New South Wales legislation as an example of the limitation of the effect that divorce has on a will. In NSW, divorce may not revoke the whole of the will, but may lead to the revocation of:
- any gifts to be given to ex-spouses; and
- the appointment of an ex-spouse as trustee, executor or guardian, unless the person for whom the will is being made expresses a fresh intention that this former spouse be appointed in this way.
Conclusion
For any wills that are made prior to marriage that do not anticipate marriage, or if you have just divorced, it is a good idea to speak with a will and estates lawyer who can assist you in drafting a new will that most accurately reflects your current intentions.
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