By having a will, you have a say as to how you want your estate to be distributed after death. If you pass away without a will, this is known as “dying intestate” which can cause complications, delays and extra costs for those who you leave behind.

Making a will is a simple process and must be signed and witnessed properly.

Your will remain in force unless you change or revoke it before you pass away.

What happens to a will in divorce?

Depending on the jurisdiction, a divorce not a separation may automatically revoke your will or part of it. If you remarry, your will is automatically revoked in all states and territories.

For example, if a married person dies at any stage between separation and getting a divorce, a valid will made during your marriage will still remain valid. In the same circumstances, if you die without making a will, your estate will pass under the laws of intestacy to your partner, even if you are separated.

It is prudent to make a new will or amend your existing will after separation.

What happens to my will when I marry?

A marriage automatically revokes a person’s will.

If you plan to marry or divorce, you may need to change your will.

What is an executor under a will?  

The executor is a person specified in the will as the one who is to be responsible for managing your estate after you pass away. The executor must be over 18 years of age.

You can also appoint a professional such as the NSW Trustee & Guardian or your solicitor as the executor. Please note that if you decide to appoint such person, you will be charged fees.

It is imperative to ensure that your executor knows the location of your will.

Can I amend my will if I change my mind?

You can change your will at anytime as long you have mental capacity. However, you change your will by crossing out the content of your existing will or hand writing something different in its place. You can make a codi seal, which is a separate document in which you make change to your will. Please note that this would need to be properly signed and witnessed. It is often best to revoke your existing will and create a new one.

Where should I keep my will?

You can keep your will in a safety deposit box in a bank or a safe place at home. Also, you can store your will in the Will Safe which is administered by the NSW Trustee & Guardian.

Can my will be challenged?

A will can be challenged on the ground that it is not valid. The person contesting a valid will would have to establish that:

  • The will was not the last will;
  • It was not signed and witnessed in accordance with the law;
  • The testator/testatrix lacked mental capacity when the will was signed;
  • The will was changed after it was originally changed; and
  • The testator/testatrix was pressured or forced to make the will.

Jointly held properties after death

Regardless of what your will says, your interest in any property held by you and your partner as joint tenants will pass directly to your partner upon death. To avoid this, you could decide with your partner to amend your title to the joint property so that each party holds their interests as tenants in common.

Our team of professional lawyers at Eckert Legal can help you with all matters concerning wills. Contact us today on (02) 9622 1388 to discuss your matter with us.