When to update your will: life events that break an estate plan

Events that change your will by operation of law

Two life events change a Queensland will automatically, whether or not you intend it.

• Marriage generally revokes a will, except to the extent it was made in contemplation of that marriage, or deals with a gift to the person you married and appoints them as executor.
• Divorce generally revokes gifts to the former spouse and their appointment as executor, though the rest of the will usually stands. Separation alone does not — a separated but undivorced spouse can still inherit everything.
• Entering or ending a registered civil partnership has similar effects.
• A de facto relationship does not revoke a will, but the partner may still have a family provision claim against your estate.

Family changes that call for a review

Any change in who is in the family, or in their circumstances, is a reason to look at the will again.

• A new child, grandchild, stepchild or adoption
• A beneficiary's death, disability, bankruptcy, addiction or relationship breakdown
• A second marriage or blended family, where competing claims are near-inevitable without careful drafting
• An executor who has died, moved overseas, aged, or fallen out with the family
• A child taking over the family business or farm while others do not
• Estrangement — a deliberate exclusion needs contemporaneous reasons recorded properly

Asset changes that can make a gift fail

A specific gift of an asset you no longer own generally fails — the doctrine of ademption. Leaving 'my house at 12 Smith Street' to one child and the residue to another, then downsizing, can accidentally disinherit the first child entirely.

The same happens when a company or trust is restructured, an investment property is sold to fund aged care, or an attorney sells assets under an enduring power of attorney. If the asset mix has changed materially, the will should be re-read against it.

• Buying, selling or refinancing property
• Selling a business or restructuring into a company or trust
• Large changes in superannuation or life insurance balances
• Acquiring assets overseas, which may need a separate will in that jurisdiction
• Moving assets into joint names — jointly held property passes by survivorship, not under the will

The things a will does not control

Superannuation is not an estate asset unless it is directed there. Check whether your binding death benefit nomination is current, whether it has lapsed after three years, and whether a non-lapsing nomination is available in your fund. Life insurance held inside super follows the same nomination.

Jointly owned property passes automatically to the surviving owner, and assets in a family trust or a company are not yours to give away by will. A review should cover the whole picture, not just the will itself.

How often to review

As a rule of thumb, read your will every three years and after any of the events above. A review is usually short and inexpensive; a codicil or a fresh will costs far less than the family provision application that follows a stale document. If capacity is becoming a concern, do not wait — a will made while capacity is clearly intact and properly documented is much harder to challenge.

Frequently asked questions