Wills

A will remains valid until it is revoked or a later will or codicil is made. Between the time of making a will and the willmaker’s death, circumstances may change. The willmaker may sell or buy property, the beneficiaries in the original will may die, or new beneficiaries may come into consideration. Accordingly, a willmaker should review their will regularly to ensure their will is relevant and still correctly reflects their intentions. Whether circumstances change or not, the will remains in force as at the date of signing unless the will is changed in whole or in part (s 18 WA 1958).

If the willmaker does not own the asset given under the will at the time of the willmaker’s death, the gift is ineffective and is said to have ‘adeemed’.

The will itself cannot be altered by obliteration (rubbing out), interlineation (writing between lines) or by any other alteration after the will has been signed, unless the alteration is signed by the willmaker and the two witnesses in the same way as for the whole will.

All signatures to the alteration must be made as close as possible to the alteration itself; this is usually done in the margin. Where any typing or handwritten mistakes occur when the will is being prepared, these should be corrected and the correction initialled by the willmaker and witnesses at the time of attestation. A formal codicil can be executed to make alterations to a will. However, generally it is preferable to execute a new will incorporating the required amendments rather than to have two documents that can be difficult to read together.

A will can be changed by: 1 making a new will revoking earlier wills; 2 making a codicil to an existing will, altering part of

the existing will; or 3 ripping up the will with the intention to revoke

the will; this revokes the will, but another must be

made to replace the destroyed will.

A codicil is an addition to an earlier will that also confirms the remaining provisions of that will. It must conform to all the formalities outlined above in relation to the will. A codicil that refers to the ‘will’ in general terms has the effect of confirming the will and any earlier codicil. Codicils are used to make minor changes to the will. If major changes are to be made or where the will is short (say, not over one page long) it is better to make a new will incorporating the desired addition.

To revoke a will is to cancel its effect. A will can be revoked in any of the four following ways. 1 If the willmaker marries, under section 13 of

the WA 1997, a will made at any time before the

marriage is automatically revoked, unless: a the will is expressed to be made in contemplation

of that marriage; b the terms of the will, or those terms and the

surrounding circumstances at the time of

making the will, indicate that the willmaker

contemplated that he or she would or might

marry and intended the gift made in the will to

take effect because of that marriage; or c the will specifically gives land or personal

property to the person whom the willmaker

subsequently marries. Subsequent divorce or separation will not revive or revalidate any will made prior to the marriage. Effective from 27 April 1995, gifts to divorced spouses are invalidated and their appointment as executors under the will of a divorced spouse is revoked when the divorce becomes absolute. The rest of the will remains operative (s 14 WA 1997). The Act, however, still allows a divorced spouse to be a guardian or trustee for infant children of the marriage (s 16A WA 1958; ss 13, 14 WA 1997). It is important to remember that, under current Victorian law, a will made during the existence of a marriage is still effective after separation or divorce. It is therefore important to remember on the breakup of a marriage that it will be necessary to make a fresh will and perhaps include a new spouse or partner.

If you are living in a de facto relationship and want your partner (in the A&P Act called a domestic partner) to inherit some or all of your estate, you must make a will; particularly if you have lived together for less than two years.

A domestic partner is not included in the scheme of intestacy in the A&P Act unless the deceased intestate and the domestic partner (which includes a same-sex partner) have lived together continuously for two years immediately prior to the death of the intestate partner, or they have had a child who is under 18 at the death of the deceased intestacy, or the parties have registered their relationship under the Relationships Act 2008 (Vic).

If the intestate deceased also had a spouse as well as a domestic partner, a sliding scale regulates their relative entitlements, based on the length of the domestic relationship. The domestic relationship must have existed immediately before the willmaker’s death (s 3 A&P Act). If the intestate deceased had a spouse

and multiple domestic partners and died after

1 November 2017, sections 70Z–70ZE of the

A&P Act regulate the spouse’s and domestic

partners’ entitlements. 2 A will or codicil to it or any part of that will or

codicil may be revoked by a later will or codicil;

all formalities as outlined above must be complied

with (s 18(b) WA 1958, s 12 WA 1997), which now

includes remote revocation (s 12(3) WA 1997).

A revoked will or codicil can be revived provided

the document is re-executed as prescribed by

section 7 of the WA 1997 (s 16 WA 1997),

including remote execution (s7 WA 1997). 3 An earlier will may be revoked by inserting a

revocation clause in a later will, revoking all earlier

wills (s 18(c) WA 1958; s 12(2)(g) WA 1997). 4 Burning, tearing or otherwise destroying a will

revokes it; this must be done by the willmaker

or by some person in the presence and at the

direction of the willmaker with the intention that

the will should be revoked (s 18(d) WA 1958;

s 12(2)(f) WA 1997). Revocation and republication If a will is destroyed, and no further will is made, the willmaker dies intestate. A will made before the one destroyed can be revalidated if it is re-signed, newly dated and all other formalities are complied with.