Many people underestimate the impacts of big life events when it comes to Wills, inheritance and estate law. If you get married, divorced, have children or change your relationship with a person named in your Last Will & Testament, making a Will to replace an existing one ensures that only the people currently significant in your life are included.
Making a Will that replaces an existing one is the simplest way to disinherit someone. However, if you wish to leave someone significant out of your Will, you should always seek professional advice. A lawyer or estate planning specialist can help you prepare a supplementary statement to explain why you are not providing for the person. This won’t prevent that person from challenging your Will, but it means they can’t argue that they have simply been forgotten.
This article provides some options to consider when making a Will.
How to disinherit someone from a Will
If you’re making a Will and want to disinherit a close relative or dependant (such as a child or spouse) from an existing Will, it’s not as easy as just leaving their name out. Dependants who are left out of a Will - or who aren’t left as much of an inheritance as they expected - can apply for a proportion of your estate for their maintenance.
Contesting a Will in court is becoming more common in Australia, as well as other parts of the world. After someone passes away, it can be surprising to learn who believes they are entitled to an inheritance – or a larger piece of the estate.
When should I update my Will?
Some life events you might consider updating your Will in light of include:
- the birth of another child or grandchild;
- a marriage or divorce;
- the death of a loved one; or
- buying or selling a new home or another investment.
How do I make changes to my Will?
If you wish to make changes to an existing Will, you need to make an official alteration called a codicil. This must be signed and witnessed in the same way as a Will. It’s generally safer and simpler to make a new Will altogether.
How do I revoke my Will?
Revoking your Will means that a current Will is cancelled, or no longer valid. Making a new Will before destroying the old one ensures you have a legal Will at all times and don’t risk dying intestate. Alternatively, a Will can be revoked by writing a legal document stating that you wish for it to be revoked, either in whole or in part. The document must be signed in the same way that you sign your Will.
You also revoke your Will if you tear, burn or destroy it with the intention of revoking it.
Marriage
Marriage automatically revokes any Will that existed prior to that marriage, even if your spouse is the person named as the sole beneficiary. If you are making a Will prior to marriage, you can get around this by including a Contemplation of Marriage clause.
Divorce
When you divorce, your Will is either revoked or the section relating to your former spouse is considered null and void, according to the law in each state and territory, except the Northern Territory and Western Australia.
After a divorce, whatever you had specified to be left to your former spouse now forms part of your residuary estate. These are the assets that remain after all gifts are bequeathed and debts, taxes and fees are paid.
Making a Will that replaces an existing one is an important thing to do immediately after a divorce has been legally granted. Making a new Will ensures that you will not die intestate, and also that you will still provide for any beneficiaries, children or dependants as you wish.
Separation
Following a separation, your ex-spouse is not automatically disinherited from your Will, especially if they are financially dependent on you. In Australia, you must have been separated from your spouse for at least 12 months before a family court can finalise your divorce. So, if you died before the divorce was finalised, your estranged former spouse would still receive everything you had specified them in your Will.
The laws relating to disinheriting relatives from a Will vary between state and territory, so seeking professional advice will ensure this is done correctly. There are also additional steps you can take to limit the chances of a successful challenge if you suspect a relative may challenge your Will.
To learn more, visit the Bare Wills page or chat with our estate team for a free consultation, on 1800 959 371.
This article is not legal advice. You should speak with a legal professional for specific advice on your personal or financial situation.
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