How to Update or Revoke a Will

A Will (or Testament) is an important legal document setting out how your assets and property will be divided once you pass away. The thought of writing a Testament may be daunting, especially due to the nature of the document. However, for a lot of people, a Will ensures peace of mind for themselves and their families. Lawpath provides an Online Will Kit which can help you start drafting your Will. 

In this article, we discuss how to change or revoke your Will if need be. A Testament only changes when the testator formally changes or revokes it. Further, no other circumstances can change a Will except for marriage or divorce. Read our guide below. 

Table of Contents

Marriage and Divorce

As stated above, the only instances where a Testament can automatically change is due to marriage or divorce. Regarding marriage, any previous Wills will be revoked, unless the Will was made with marriage in mind (section 12 Succession Act 2006 (NSW)). However, there are exceptions to this rule, which are listed under section 12 of the Act.

This includes:

  • Any gifts to the person to whom the testator is married to at the time of their death
  • An appointment as an executor, advisory, trustee or guardian of the person to whom the testator is married to at the time of their death
  • When property under the Testament in relation to which the appointment is exercised would not pass to the NSW Trustee, executor or administrator and Guardian if the power of appointment was not exercised

In the case of a divorce, a Testament is not completely revoked. However, things that can be revoked are:

  • any gifts to your former spouse
  • the appointment of your previous spouse as the executor, trustee or guardian of your Testament

Normally with a divorce, people create a completely new Testament rather than using one with partially revoked clauses.

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How to Update a Will

Sometimes you might need to update your Will for a number of different reasons. The best way to do this is by adding a codicil to your Will. You’re probably wondering what a codicil is. In simple terms, it is a document which is used to explain or modify a Testament. Formal requirements must be met in order for a codicil to be valid. However, it is important to keep in mind that you should avoid including any clauses which could cancel or revoke any previous Testaments that you have made, as you can end up cancelling it instead of updating it.

How to Revoke a Will

If you are thinking of revoking a Testament, there are particular instances where you are allowed to do so. Under section 11 of the Succession Act 2006 (NSW), it sets out when and how a Testament can be revoked. Instances include:

  • If the revocation is authorised by sections 16 or 18 of the Act or by the operation of sections 12 or 13
  • By a later Will 
  • By some form of written notice declaring intent to revoke the Will, in a matter prescribed by the Act 
  • The testator, or by someone in their presence and by their direction, burning, tearing or otherwise destroying the Will with the intention of revoking it 
  • Done by the testator or by someone in their presence and by their direction, writing on the Will or dealing with it in such a way which would satisfy the Court from the state of the Will that the testator intended to have it revoked

Conclusion

Writing up a Testament does not have to be a daunting task. It is an important document which can put your mind at ease with regards to your assets once you pass away. Informing yourself about possible ways of revoking or changing your Will is vital to understand. If you still have questions or need any assistance, speak to a wills lawyer.

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