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Is it time to review your will?

By Sarah Camm

It is suggested that you review your will every 12 months to ensure it is still appropriate and reflects your current wishes. This may seem excessive, but the circumstances which can affect the validity of your Will can be life changing, momentous, stressful, exciting, devastating times. Alternatively, the change might be something you consider incredibly minor, with no impact on anyone but yourself. In either case a redraft of a dusty old document that’s out of sight in a safe somewhere is often the furthest thing from your mind.

 

Below is a list of events that almost everyone experiences in their lifetime. Read on to see which will mean a redraft, and which you can celebrate without calling a lawyer.

 

  1. Moving house

Most Wills begin by stating your name, address and occupation, but a change in any of these does not necessarily mean you need a re-draft. If you die and your most recent address is different to that in your Will, your executor may need to add an extra sentence to documents that they need to fill out, however this is unlikely to cause delay or increased costs in administering your estate.

 

  1. Buying/selling

If you have moved because you bought or sold a house you should consider:

  • whether you have given the house specifically to a particular person in your Will: if you no longer own a gift you specifically left someone in your will then this gift will fail, and the person you gave it to may not receive anything!
  • whether this creates a disproportionate distribution: if you leave all your houses to Jill and all your cash to Jeff, but then you use all your cash to buy more houses, Jill may receive more and Jeff less than you intended.
  • whether you have given permissions or rights regarding the property: you may wish to allow the guardian of your children to raise your children in the “family home”, and in doing so may have requested your executors not sell a specific property. You should ensure that, if the “family home” changes, your Will reflects this.

 

  1. Name changes

Ideally your Will should state your full, proper and current name as well as the full, proper and current name of your executors, trustees and beneficiaries. Similar to changes in address however, name changes may be explained by the executor in an affidavit or statutory declaration.

 

  1. Marriage

If you get married, your existing Will is automatically revoked except for dispositions made to your new spouse. Any gifts you left to any other person will fail. Unless you execute a new Will following your marriage then your estate will be dealt with in accordance with the intestacy provisions, which may mean your wishes are not followed. The only exception is where your Will was made “in contemplation of marriage”.

 

  1. Entering a civil partnership

This has the same effect as marriage.

 

  1. Entering a de facto relationship

Moving in with your significant other has no effect on your existing Will. If you have not provided for your spouse in your Will they will not receive a part of your estate, and if you have been living together for 2 years, they can contest your Will if you die.

 

  1. Divorce / ending a civil partnership

A divorce will void certain provisions of your Will, but will not void the Will altogether. The same is true where a civil partnership is terminated or found to be void. This could create some strange outcomes, and possibly lead to litigation.

 

  1. Separation

Unlike divorce, separation from a spouse (whether you are married or not) will not usually cause your Will or any of its provisions to automatically be revoked. A disposition of your entire estate to your partner could be enforced even though you separated years ago. This may have significant negative implications, particularly where you have children (from a new or previous relationship), a new spouse or partner or other family members you intended to receive your estate.

 

  1. Death of a beneficiary

Most Wills allow for “substitution”, so that if a person who was to receive a share of your estate dies before you or before attaining their interest, the gift passes to someone else instead. If you know a beneficiary has died, you should review your Will. Check whether your substitution clause makes sense, and that the chain of events you once thought unlikely does not have a strange, unwanted effect on your estate.

If a gift to a beneficiary fails and there are no substituted beneficiaries, then that specific gift will be passed with the residue of your estate (i.e. what is left after you have made specific gifts). If you do not have a residuary clause, or if the gift that fails is the gift of residue, then part of your estate may be distributed in accordance with the intestacy rules, which may not be in accordance with your wishes.

 

  1. Birth of a child

You may not need to redraft your Will after having a(nother) child, but you should definitely check it. If you left gifts to your children by naming them specifically rather than leaving your estate to “any child of mine alive at the time of my death”,a child who is not named may need to apply to the Court in order to receive an inheritance.

 

  1. Death of a testamentary guardian

You named a person who is important to you and who you infinitely trust to be guardian of your children should you die. If this person dies, it is important that you review your Will. Have you appointed a substitute guardian? Many people list a sibling as their first-choice guardian and often will list that sibling’s spouse as the substitute. Are they in a position to care for their children as well as yours, potentially as a single parent? Or you might have listed a parent of yours as the substitute guardian. Does their health, financial situation and living environment mean they are able to care for your children, potentially for a number of years? This is one of the most important decisions you have to make in your Will, and if the clause fails a difficult time in your family members’ lives could become even more terrible. You should discuss it with your family and determine who would be best placed to care for your children given a number of potential eventualities.

 

The above list is not exhaustive, and there are many events big and small which may have an effect on your Will and the administration of your estate following your death. You must never change your Will by simply writing on it. You should consult a solicitor to determine how best to incorporate your change in circumstances and current wishes.

A Wills & Estates solicitor can assist you to work through a number of best – and worst- case scenarios, and ensure that your Will is as certain as possible, and reflects your wishes. At Just Us Lawyers we have experience in drafting Wills for clients with a wide range of circumstances. Contact Just Us Lawyers at Kelvin Grove today to enquire about drafting a new Will that reflects your wishes today.

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