We here at FindLaw have consistently emphasised the importance of creating a valid will – especially if you have substantial assets, and beneficiaries. However, your life is at a constant state of evolution and circumstances may arise where a need to change, or revoke a will may become necessary.
First, before a will has been signed, the will-maker is able to change any words within the will. Any changes undertaken must be signed or initialled within the margin, or close to the alterations for the changes to take effect by the will-maker, and witnesses.
Updating a will after it has been signed
A codicil is generally the only way in which a will may be changed after it is signed, and for the codicil to be effective, it must meet all of the formal requirements of creating a valid will.
It is important to be aware that the codicil must not contain a clause cancelling previous wills, or it may also end up cancelling the will that the codicil was intended to update.
How a will may be revoked or cancelled
All jurisdictions have their statutory regimes as to how a will may be revoked. However, some of the general ways in which a will, or part of a will may be revoked can include:
- divorce or annulment;
- the creation of a new will;
- declaring an intention to revoke the will.
The effect of marriage and divorce on the will
Generally speaking, if the will-maker marries, the will is automatically revoked, but for a will made in anticipation of the marriage.
Interestingly in some jurisdictions such as New South Wales, s 12(2) of the Succession Act 2006 (NSW) sets out a number of exceptions of instances where marriage does not automatically revoke the will, and are as follows:
- a disposition to the person to whom the testator is married at the time of his or her death;
- an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of his or her death;
- a will made in the exercise of a power of appointment if the property in relation to which the appointment is exercised would not pass to the executor, administrator or NSW Trustee and Guardian if the power of appointment was not exercised.
In relation to the effect divorce has on a will, again, we can turn to the New South Wales Act which states that a divorce may not revoke the entirety of the will, but may revoke:
- gifts to former spouses;
- an appointment of a former spouse as an executor, trustee or guardian, unless the will-maker makes a contrary expression of their intention.
For wills created before and not in anticipation of a marriage, as well as a divorce, it’s probably a sensible approach to create a new will in the event of any substantial, personal life changes.