Changing a will

As with any document, no matter how much care goes Into its preparation, it may be created with errors – or just require changes after it has been finalised. Thankfully, it is possible to change or, even, revoke a will (or parts of It) – as long as the proper procedures are followed.

Requirements

Often wills are made long before a person dies. Between the time of making the will and death, circumstances may change. The willmaker may sell or buy property, may give it away or lose it, the beneficiaries in the original will may have died, and/or new beneficiaries may come into consideration.

If the willmaker does not own the asset given under the will at the time of the willmaker’s death, the gift is ineffective and is said to have “adeemed”.

Whether circumstances change or not, the will remains in force as at the date of signing unless the will is changed in whole or in part (s 18 WA 1958).

The will itself cannot be altered by obliteration (rubbing out), interlineation (writing between lines) or by any other alteration after the will has been signed, unless the alteration is signed by the willmaker and the two witnesses in the same way as for the whole will.

All signatures to the alteration must be made as close as possible to the alteration itself; this is usually done in the margin. Where any typing or handwritten mistakes occur when the will is being prepared, these should be corrected and the correction initialled by the willmaker and witnesses at the time of attestation. A formal codicil can be executed to make alterations to a will. However, generally it is preferable to execute a new will incorporating the required amendments rather than to have two documents that can be difficult to read together.

How to change the will

This can be done by:

1 making a new will revoking earlier wills;

2 making a codicil to an existing will, altering part of the existing will; or

3 ripping up the will with the intention to revoke. This will revoke the will, but another would need to be made to replace the destroyed will.

Codicil

A codicil is an addition to an earlier will that also confirms the remaining provisions of that will. It must conform to all the formalities outlined above in relation to the will. A codicil that refers to the “will” in general terms has the effect of confirming the will and any earlier codicil. Codicils are used to make minor changes to the will. If major changes are to be made or where the will is short (say, not over one page long) it is better to make a new will incorporating the addition.

Revocation

To revoke a will is to cancel its effect. A will can be revoked in any of the four following ways.

1 If the willmaker marries, a will made at any time before the marriage is automatically revoked, unless:

athe will is expressed to be made in contemplation of that marriage;

bthe terms of the will, or those terms and the surrounding circumstances at the time of making the will, indicate that the willmaker contemplated that he or she would or might marry and intended the gift made in the will to take effect because of that marriage; or

c the will specifically gives land or personal property to the person whom the willmaker subsequently marries.

Subsequent divorce or separation will not revive or revalidate any will made prior to the marriage. Effective from 27 April 1995, gifts to divorced spouses are invalidated and their appointment as executors under the will of a divorced spouse is revoked when the divorce becomes absolute. The rest of the will remains operative. The Act, however, still allows a divorced spouse to be a guardian or trustee for infant children of the marriage (s 16A WA 1958; ss 13, 14 WA 1997). It is important to remember that, under current Victorian law, a will made during the existence of a marriage is still effective after separation or divorce. It is therefore important to remember on the breakup of a marriage that it will be necessary to make a fresh will and perhaps include a new spouse or partner.

If you are living in a de facto relationship and want your partner (in the A&P Act called a domestic partner) to inherit some or all of your estate, you must make a will. A domestic partner is not included in the scheme of intestacy in the A&P Act unless the willmaker and the domestic partner (which includes a same-sex partner) have lived together for two years immediately prior to the death of the intestate partner, or they have had a child who is under 18 at the death of the willmaker, or the parties have registered their relationship under the Relationships Act 2008 (Vic). If the willmaker also has a spouse, a sliding scale regulates their relative entitlements, based on the length of the domestic relationship. The domestic relationship must be in existence immediately prior to the willmaker’s death (s 51A A&P Act).

2 A will or codicil to it or any part of that will or codicil may be revoked by a later will or codicil; all formalities as outlined above must be complied with (s 18(b) WA 1958; ss 12; 16 WA 1997).

3 An earlier will may be revoked by inserting a revocation clause in a later will, revoking all earlier wills (s 18(c) WA 1958; s 12(2) WA 1997).

4 Burning, tearing or otherwise destroying the will revokes it; this must be done by the willmaker or by some person in the presence and at the direction of the willmaker with the intention that the will should be revoked (s 18(d) WA 1958).

Revocation and republication

If the will is destroyed as above, and no further will is made, the willmaker would die intestate. An earlier will than the one destroyed can only be revalidated if it is re-signed and newly dated and all other formalities are complied with as for making a will.