Most Queenslanders aged over 65 have made a Will but many have never updated it, making the theme Queensland Wills Week – 'Life changes, so should your Will' – a timely reminder.
Updating a Will requires making a new Will that supersedes the previous Will, even if the terms of both Wills are mostly the same.
While 87% of Queenslanders aged 65-plus have a Will, according to a survey by Queensland Public Trustee (QPT), 52% made their Will more than 10 years ago, 32% had never updated it and 9% most recently updated their Will more than 10 years ago, the survey showed.
Why should I make a new Will?
Samay Zhouand, the Public Trustee of Queensland, said a Will that didn’t match an individual’s life circumstances at the time of their death could be more expensive to administer and more likely to be challenged.
"Some life changes can cause your entire Will to be revoked, meaning that if you don’t make a new Will, your estate will be distributed according to the law and not your wishes," he added.
Queenslanders' Wills should reflect the many life changes that can happen in their 60s or later, Mr Zhouand said.
"Hitting retirement age isn’t just the time people decide how they’ll use their super, if they’ll downsize and if they’ll help their kids or grandkids with money," he said. "It’s also a time for travelling more widely, tree-changing or sea-changing, indulging in hobbies and, sadly, of re-evaluating relationships and losing friends to ill health.
"Those changes can all be cues that it’s time to get make a new Will."
10 significant life events that can impact a Will
QPT has identified common life events that may mean a new Will is in order, based on Queensland’s Succession Act 1981 and QPT’s long experience in making Wills for Queenslanders – something it has done since 1916.
Getting divorced
Divorce automatically revokes any gifts willed to a former spouse. It also revokes a former spouse’s appointment as executor unless the Will explicitly states otherwise. An updated Will may be needed to name alternative beneficiaries and a new executor.
Separating a relationship
Separation has no impact on their Will, so a new Will may be needed to ensure an estranged partner doesn’t benefit from their former partner’s estate.
Marrying or entering a civil partnership
Marriage or civil partnership automatically revokes a Will unless the Will was made in contemplation of that marriage or civil partnership. If a person marries or enters a civil partnership but doesn’t make a new Will before they die, there is a risk they will die intestate – without a valid Will – and their estate will be distributed according to the rules of intestacy.
Moving in with a partner
A de facto partner of two or more years is considered a spouse, in the same way a marriage partner or civil partner is a spouse.
But determining if a relationship is a de facto relationship isn’t straightforward, with cohabitation one of several deciding factors. Making a new Will to specifically include or exclude a de facto partner may be a more certain way to achieve a desired outcome.
Acquiring or offloading assets
A Will that doesn’t reflect the deceased’s financial situation at the time of their death can lead to confusion for their executor or disputes among beneficiaries. An application to the court for clarification or orders to resolve disputes may be needed, which is expensive and time consuming.
If an entire estate isn’t distributed under the terms of a Will, the deceased may be considered partially intestate and the assets not distributed in the Will may be distributed according to the rules of intestacy.
Expanding or blending the family
If a family member believes they aren’t adequately provided for in a Will, they may make a family provision application for a share or a larger share of the estate. Such a claim can be expensive for the estate to defend. The birth or adoption of a child or grandchild or the creation of a blended family is a good point to review a Will to ensure such considerations are addressed.
It may be helpful to include a clause in a Will with regard to any loans made to family members that are to be repaid. It may also be helpful to leave a note about whether any monetary gifts given during the testator’s life impacted how gifts were allocated to beneficiaries in a Will. This may reduce the risk of disputes over whether money provided during the testator’s life was a loan or a gift and whether such a gift was considered when the Will was made.
Death of an executor
Executors must be explicitly named in a Will. If a Will has only one executor and that executor dies or is otherwise unable or unwilling to fulfil their role, an application to the court may be needed to appoint an administrator. This can delay the distribution of an estate by several months.
Death of a beneficiary or beneficiaries
The death of a beneficiary can also cause confusion and trigger disputes if a Will does not have provisions to distribute assets gifted to that beneficiary to others upon their death.
Call 1300 360 044 or book online for a Will-making appointment at QPT. Call 1800 512 451 for help to interpret QPT webpages.