At Coode & Corry solicitors we are often asked by our client's how often should I update my Will?
You should review your Will regularly and especially if one of the following occur:
- If you marry, separate or divorce;
- If you have children (including step-children, adopting children, or fostering children);
- If you enter into or end a de-facto relationship;
- If a beneficiary stated in your Will dies;
- If your executor dies, or becomes unwilling or unable to act because of ill health, or for any other reason;
- If you specifically leave any property (i.e. a house, or car) to a beneficiary which you sell;
- If you re-arrange your financial affairs, i.e. establish a SMSF, family trust or enter into a new business venture.
If you do not update your Will, there may be unintended consequences for your beneficiaries, and the administration of your estate.
In the recent case of Lodin & Lodin  NSWSC 10 (read more here http://coodecorry.com.au/estate-planning-2/), the Court awarded the former spouse of a deceased Doctor a sizeable portion of his estate after he failed to make a Will following family law proceedings.
If an executor dies prior to the testator, the Court will appoint an administrator on behalf of the Estate. The beneficiaries will have to apply to the Court for Letters of Administration with the Will annexed, because the Estate is considered to be intestate (that is, without a Will). That is, a Will is not a Will unless it has an Executor. The Court generally appoints the beneficiary who is to receive the largest portion of the deceased's estate but this is not always the case. This process can be lengthy and add significant cost to your Estate even if no one challenges the Estate.
If a beneficiary dies prior to the testator, depending on the drafting of the Will and residuary clauses, persons whom you intended to receive a gift from your Estate, may receive nothing.
It is also important to update your binding death nomination for your Superannuation fund at least once every three years. Superannuation is treated separately from your Estate, and the trustees for your superannuation fund have a discretion to pay the fund, to any potential beneficiaries. By updating your binding death nomination regularly, the trustee for your superannuation fund will be informed of who you wish the benefit to be paid to upon your death.
What should you do?
If you have yet to make a Will, or need to review and update your Will we urge you to make an appointment with Hamish Williams of our office to ensure your Estate is left to the people you intend it to be left to. He wrote this article as he has experience with the sort of litigation that results from a failure to properly prepare your Estate, and so he knows what he is trying to protect you from.
If you would like more information about Estate planning, then click on the link to the left to read more of our articles.