While no list can capture every scenario where changing your will would be desirable, the list below covers most cases where updating your will would be advisable, in addition to the obvious one: if it no longer reflects your wishes.
Other documents to consider when reviewing your will
Significant relationship changes, including starting or ending a relationship with a spouse/partner, or their death, is also a reason to review any beneficiary nomination you have:
- given your super fund stating who gets your super on your death (Death Benefit Nomination or DBN), and
- made on any life insurance policy you hold outside superannuation. (It is now rare to hold such policies outside a super fund, however. If the life policy is in your super fund, it is covered by your Death Benefit Nomination).
These amounts are not part of your estate and do not pass under your will. You may not even be aware you have made a DBN. These documents are often part of the paperwork you sign when joining a super fund. Check with your super fund whether you have made a DBN.
When to consider updating your Will/Death Benefit Nomination
You should ideally consider creating a draft during your retirement planning stage and then consider updating your will when:
- Your spouse/domestic partner dies.
A will often says what happens if your spouse/partner dies before you but, if it does not, you will need a new will if they die.
- You have your first child
(That is if your will does not already say what happens if you have children when you die.)
Apart from deciding what to leave to your children, you should consider appointing someone to be their guardian after your death, if you and your spouse/partner die while you have a minor child. This is often a close relative or family friend. You should also consider whether your will should give the guardian a monthly payment for looking after your child(ren) and/or a lump sum to allow them to buy a larger home to accommodate extra residents or extend their existing home. In this case it is advisable to have an independent person act as executor to ensure this money is applied properly.
- An intended beneficiary dies.
For example, the wills of many couples with children state that upon the death of the last spouse/partner, their property will be divided equally among their children, but if one of their children dies before them:
- a) without leaving children, their share goes to your surviving children; or
- b) leaving children of their own, the deceased child’s share goes to their children (your grandchildren).
If you made a Will before you even had children, and for that or any reason it only contains paragraph a) above, you may wish to amend it to include paragraph b) instead.
- A beneficiary has a relationship breakdown/forms an unsuitable relationship.
If you leave a substantial inheritance to a child who is separating (or you do not trust their spouse/partner and they eventually do separate) their ex may be awarded part of their inheritance by the Family Court. Or (far more likely, but similar in effect) the Court might use their inheritance as a reason for giving their ex a much larger share of their joint matrimonial property than they would have otherwise received.
It can be difficult to avoid this result, because the Family Court has extensive powers for getting around trusts which would be effective to keep assets away from claims in other cases. Even if you leave that child’s share to another family member as trustee for the child concerned, the Court may use that as a reason to award more of the matrimonial property to their ex. If this scenario exists in your family, we can discuss potential solutions with you.
- A beneficiary suffers mental incapacity/has a drug problem
You will need to appoint someone else (normally a sibling, family friend or advisor) as trustee of that beneficiary’s share of your estate. That trustee will invest it on their behalf, make payments for their care and maintenance and protect them from being taken advantage of or wasting money.
- A beneficiary is sued, owes large debts, or starts a business with a lawsuit risk.
If you leave assets to a beneficiary who is successfully sued, their inheritance may be taken to pay any court judgement against them. You may wish to leave that beneficiary’s share to a trustee instead, who has discretionary powers to pay amounts from your estate to that beneficiary and a class of other related persons, including their (present or future) spouse and children.
Unless the beneficiary is already being sued, you can make them the trustee of their own trust under your will. You would also give your child the power to remove the trustee of that trust and appoint a replacement. This is so if they get sued, they can appoint their spouse or a sibling to manage their trust for them.
The fact that your child (or someone they trust) can decide who gets cash from that trust means they will still get the same benefit as if you left that share of your estate to them personally. The fact that the trustee has the discretion to pay money to them or other persons, however, means that the trust property is not legally theirs (except any amount the trustee transfers into your child’s own name). This means that their inheritance left in the trust cannot be taken to pay their debts.
- A beneficiary becomes estranged from the family.
You may wish to remove them as a beneficiary or reduce their share. This may entitle them to claim against your estate, however. Please discuss strategies for managing the risk of such claims with us.
- A beneficiary suffers a significant financial misfortune.
Assume you have three adult children and they are all doing well, then one of them has an accident and will be permanently unable to work. You may wish to increase their share of your inheritance. If a Court considers that you have left an insufficient amount for any close relative, they may be able to claim against your estate. If your estate is not large and one or more children are doing worse financially than the others, giving them different sized shares may reduce the risk of such a claim.
- There is a substantial increase to the size of your estate.
At least in theory, the same will can work for an estate worth $100,000 or $10,000,000. If you have a standard will, however, rather than a “testamentary trust” and the value of your estate (plus super) means that each beneficiary may receive at least say $400,000, it may be appropriate to replace your will with a testamentary trust.
A testamentary trust can deliver the beneficiaries substantial tax savings on income and capital gains made from investing and selling estate assets. It can also protect beneficiaries against losing their inheritance to creditors. We can provide more information on request.
- You establish a discretionary trust.
Many people run a business through a “discretionary” trust. Assets in a discretionary trust which are not part of your estate and do not pass under your will. Your will should contain provisions to pass control of the trust to the persons whom you want to benefit from the assets in the trust.
- You build up a large superannuation balance.
Money payable from your super fund because of your death is not part of your estate and does not automatically pass under your will. If you have only a small super balance, the normal way in which a super fund would deal that amount on your death may well be suitable. (The fund trustee will either pay it to your next of kin direct or to your executor.)
Once you have built up a significant super balance, however, you should take advice on how to ensure that it is passed on to the people you wish to receive it, in a way which minimises or eliminates tax. (Unlike assets left under your will, money paid out of your super fund on your death can be subject to unnecessary tax if it is not structured properly.)
We have written a separate article on “Death Benefit Nominations” with more detail on the process by which super is passed on after death. We can provide a copy on request.
Also see point 9, above.
- You get married.
The law states that marriage automatically revokes your will, even if you leave all your property to your fiancé/fiancée then get married. You can avoid your will being revoked in these circumstances, however, if special wording is used.
- You separate or get divorced.
Divorce automatically revokes your will. Therefore, you should make a new one at that time. Separation does not revoke your will. If you have separated, you may wish to make will leaving out your ex.
- You commence, or end, a de facto relationship.
Unlike marriage, starting or ending a de facto relationship does not automatically revoke your will. You will almost certainly need a new will in either case.
If you would like to have a will prepared or updated or discuss your estate planning needs, please contact us on stephen@fortunaadvisors.com.au or karien.slabbert@fortunaadvisors.com.au.
If you would like to know more about what happens if a person dies without a will – learn more now!
