The 5 most important times to make a Will

If you have never made a Will before, then now is a good time to do it. If you have a Will but things have changed since you signed it, then you should update it. 

It's important to remember that a Will is never a static document and that it should be regularly updated to reflect your current circumstances and wishes. This will help you to stay in control of your estate and ensure peace of mind for your loved ones.

We’ve listed below the five major life stages that should prompt you to create or update your Will.

1. Marriage, separation or divorce

Relationships are an important part of life. They are also a large source dispute when it comes to administering an estate.

Commencing a new relationship is an exciting time in life, and one that should never be rushed into without covering the finer details. Many people know about prenups, but did you know that this is also one of the most important times to create or update your Will?

If you already have a Will before you get married, then your subsequent marriage can make parts of it (or the whole document) invalid, unless the Will is expressed to be made in contemplation of the marriage taking place. Most Wills don’t include a contemplation of marriage clause.

Therefore, if you are about to get married or have recently married, you should pull out your original Will and make amendments as appropriate.

De facto relationships can also create obligations for you to consider in your Will. The longer you and your partner are together, the more likely it is that you will be expected to look after your partner in your Will. If you’ve been married before and have no desire to do so again, you should make sure that any long-term de facto relationships are clearly defined in your Will.

And like marriage, if you separate or divorce a partner, you should review your Will. In most states and territories, a divorce will not invalidate the whole Will, just those clauses that make a gift to your former spouse.

The same is not the case if you’ve simply separated from your former spouse. In the case of a separation, the gift clauses remain valid even though your relationship has ended, until such time as a divorce is final.

The death of a partner not only means that your beneficiaries will need to be reviewed, you may find yourself with more assets to deal with, particularly if you have received your partner’s superannuation. You may need to re-consider how your estate is to be distributed in these circumstances.

2. Starting a family

This is another major milestone in your life. It can be an overwhelming time for any new parent – between planning for a birth, painting the nursery and choosing names, there’s nothing more important than the sense of protection over your growing family.

This is why it’s so important to formulate a plan and make sure your children are included in your Will. Remember, a Will should never be a one-time document – your Will should be reviewed with each new child that comes into your family. That way if something happens to you and your partner, they are provided for.

If you have young children, a Will is imperative because it appoints their guardian. This is particularly relevant to same-sex couples, as the right to guardianship varies across Australia.

When choosing a guardian, think about trusted friends and relatives who share your values. Consider their lifestyle, their proximity (you might not want to uproot your kids) and their financial stability. Appointing a guardian will make your intentions clear and help avoid disputes; however, it’s not binding. The Family Court has an overriding discretion to appoint a different guardian where it considers it to be in your child’s best interests. Your intentions expressed in your Will are a relevant consideration when resolving a guardianship dispute.

3. When you buy a new home or your assets change

The contract is signed, finance approved, keys are ready. Congratulations, you’ve bought a new home!

Whether you’re a first home buyer or seasoned real estate player, property is usually the biggest asset that most people have, and forms the largest part of your estate. We strongly encourage making the time to update your Will as part of your new home “move-in checklist” – this way, it won’t get forgotten as you are hurriedly changing electricity providers and hooking up your NBN.

When thinking about your Will the most important thing to understand is whether or not an asset forms part of your estate. Your Will can only control assets that are in your name when you pass away.

For example, if you own a property with your spouse as joint-proprietors, the property will automatically transfer to your spouse when you die – it does not form part of your estate. Your spouse, however, would then need to deal with that asset in their Will.

If you make a specific gift of property in your Will (for example, a house) but you sell the asset before your death then that gift will fail, even if you wanted the beneficiary of that gift to share in your estate. Basically, you can’t leave what you don’t have. The disposal of an asset in these circumstances would justify a change to the Will.

If you start a business, come into large sums of money, buy a boat or decide to sell everything – you will need to make sure these changes are reflected in your Will.

4. When you retire

You’ve worked hard, and now it’s time to sit back and enjoy your retirement years.

Retiring is an important time in life to reflect and ensure that you have all your financial matters updated and medical and end of life plans in place. In addition to preparing a Power of Attorney or Advance Health Directive, you should spend some time making sure your Will is up to date.

If you die without a Will, a legal formula determines where your money goes. Basically, the law will identify those people who are closest to you by family relationship. Typically, this formula starts with your spouse and children, if you have them. However, for some people this isn’t necessarily where they want their assets to go. Maybe they are separated, estranged or their closest family members are no longer living.

You may wish to leave sentimental gifts to family, such as your jewellery, the grandfather clock or your spoon collection. You shouldn’t rely on promises made to loved ones – make sure you’ve reflected these gifts specifically in your Will.

5. If you become ill

Generally, it is not a good idea to wait until you are unwell before you make a Will.  Making a Will in these circumstances can certainly be more stressful. That being said, a health scare is one of the major motivators for the preparation of Wills.

A change in your health is also a good time to review your Will if you already have one.