When should you make or update your will?

A will is not a document you need to fuss over year on year. It is a document you need to have in place when it is needed, and it is needed at the moment you die — a moment for which you have no opportunity to prepare after the fact. That makes timing straightforward: make a will as soon as you have anything to leave or anyone whose interests you want to protect, and review it whenever your circumstances or wishes materially change.

When to make your first will

Most adults benefit from making a will once one or more of the following apply:

• You have any assets — a car, a small share portfolio, a savings account.
• You own a home or investment property.
• You have superannuation and life insurance.
• You have a spouse, domestic partner or children.
• You have a business, shares in a family company or an interest in a trust.
• You want to leave a specific gift — to a friend, a charity, an institution.
• You want to appoint guardians for children under 18.

Waiting until you are older, or until you have more assets, is not the right test. The point of a will is to remove uncertainty and avoid the intestacy rules. Those rules — set out in the Administration and Probate Act 1958 (Vic) — produce a one-size-fits-all outcome that is often not what the deceased would have chosen.

Life events that should trigger a review

1. Marriage. Marriage generally revokes an earlier will unless the will was made in contemplation of the marriage. If you marry and do not update your will, you can end up effectively intestate.
2. Divorce. Divorce revokes gifts to and appointments of the former spouse in most cases, but not the whole will. Read together with the substitution clauses, this can produce unexpected outcomes. Update after divorce.
3. Entering a de facto relationship. De facto partners have rights on intestacy and can make family provision claims. If you have entered a new relationship and not updated your will, both your old beneficiaries and your new partner may be affected.
4. Separation. Separation alone does not revoke gifts to a spouse. Until a divorce order is made, an estranged spouse remains a beneficiary under a pre-separation will.
5. Birth of a child or grandchild. Wills should provide for all children of a class, not just those living at the date of signing. Even then, the arrival of a new family member is a good moment to check the will still fits.
6. Death of a beneficiary, executor or guardian. Not every will has adequate alternates. Update to fill the gaps.
7. Significant change in assets. Buying or selling a property, receiving a large inheritance, starting a business or retiring can all justify a review.
8. Moving overseas or overseas assets. Wills made in Australia can address overseas assets, but different jurisdictions have different succession rules. Take advice.
9. Diagnosis of a serious illness. A diagnosis is a reason to check the will is up to date; it is not a reason to rush a poorly considered will.
10. Every three to five years anyway. Even without a specific event, review your will periodically. Laws change; your intentions may drift.

What happens if you die without a will

You die intestate. The estate is distributed under Part IA of the Administration and Probate Act 1958 (Vic). In broad outline for a death on or after 1 November 2017:

• If survived by a spouse or partner and no children (or only children of that relationship), the partner takes the whole estate.
• If there are children of another relationship, the partner takes a statutory legacy plus half of the balance; the children share the other half.
• If there is no partner, the children share the estate equally; if a child has predeceased leaving their own children, those grandchildren take the child's share.
• If no children or descendants, parents, then siblings, then more distant relatives.
• If no eligible relatives, the estate passes to the Crown.

These rules rarely produce the outcome the deceased would have chosen — particularly in blended families or where the deceased would have wanted to make specific gifts, charitable bequests or provision for a friend, godchild or long-serving carer.

Signs your will may be out of date

• You have moved and the will refers to a property you no longer own.
• An executor named in the will has died, become incapacitated or moved overseas.
• You are estranged from a beneficiary but the will still favours them.
• You have children not mentioned in the will.
• Your superannuation balance has grown significantly since the will was made.
• The will was drafted before major legislative changes — for example, before the current intestacy rules or before superannuation was a material asset for most people.

The cost of getting it wrong

The cost of a well-drafted will is modest compared with the cost of a poorly drafted or out-of-date one. Common expensive outcomes include:

• A family provision claim brought against the estate by a person not adequately provided for.
• A dispute between named executors or beneficiaries about ambiguous wording.
• An application to the court under section 9 of the Wills Act 1997 (Vic) to admit an informal document to probate.
• Loss of tax efficiency, particularly where a testamentary trust would have been appropriate but was not put in place.

For a first will, or a review of an existing one, see our wills service. Consider a testamentary trust where circumstances warrant it, and pair the will with enduring powers of attorney.

Life events that call for an update

Any significant change to a person's family, health or financial circumstances is a reason to review a will. In particular: marriage or entering a domestic partnership; separation, divorce or the ending of a domestic partnership; the birth or adoption of a child or grandchild; the death of a beneficiary or executor; the acquisition or disposal of a business, a family trust or an investment property; a substantial change in the value of the estate; a move interstate or overseas; and a diagnosis of a condition affecting decision-making capacity.

The interaction between marriage, divorce and a will

In Victoria, marriage generally revokes an existing will unless the will was made in contemplation of the marriage. Divorce does not automatically revoke a will but does affect gifts and appointments in favour of the former spouse. Separation without divorce does not have the same effect. These rules can produce outcomes that are not what the will-maker would have chosen, and a review after any change in relationship is important.

Storage and communication

Once a new will is signed, the previous will should be destroyed or clearly marked as superseded, the original of the new will should be stored securely, and the location should be made known to the executor. Beneficiaries need not receive a copy in advance but should know who the executor is.