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Review your estate planning regularly

Warren Wackerling and Luke Bull – 3 March 2015

Introduction

We’ve written previously on the importance of keeping your executors informed about the location of your will (‘Where’s your Will?’).  It’s just as important to also review your will and estate planning every 2-3 years which can avoid unnecessary court proceedings.

Facts

In a recent decision a deceased male made a will in 1991 but had not updated it before his death. Under his will, the deceased appointed his brother as executor and left his estate equally to his siblings. Importantly however, when the deceased died the original will could not be found and only a copy lingered. This became an issue as the deceased had a partner who contested the 1991 will, arguing the deceased had an intention to change it.

As the original will was ‘lost’ the court had to decide whether a presumption arose that it may have been destroyed by the deceased.  On the evidence the Judge held this presumption was not satisfied as the deceased seemed like a ‘careful man’ and it would have been unlikely for him to destroy it and not leave another.  As a result, the deceased’s surviving partner received no gift from the estate, even though there was evidence this was not in accordance with the deceased’s wishes as argued by the surviving partner.

What do I need to be careful about?

Keep your will updated and regularly review your estate planning, eg. every year or two to ensure your will does not become ‘stale’ or the original is ‘lost’. 

Consider if any of the following give cause for your estate planning to need attention to reflect your current wishes:

·         the executor dies or becomes unwilling or unsuitable to act due to age, health or some other reason

·         if a beneficiary dies

·         if a certain property or asset has been bequeathed to any person, you subsequently dispose of that property or asset or it changes in nature

·         if your family situation or that of any children or beneficiary changes (for example, marriage, divorce, further children, de facto relationships) – marriage revokes a will so far as it does not provide for your spouse unless stated to be made in contemplation of marriage

·         if you become involved in a new business, company or trust.

An updated will is important not only for you, but also your friends and family. 

This article is for general information only and should not be relied upon as a substitute for specific legal advice.