Last updated 15 August 2016
Between the time of making a will and death, circumstances may change. The testator may sell or buy property, give it away or lose it. The beneficiaries named by the will may have died or new beneficiaries may come into consideration. Whether circumstances change or not, the will remains in force from the date of signing until the testator marries, divorces or formally changes all or part of the will.
Marriage and divorce
- gifts to the person to whom the testator is married at the time of death
- an appointment as executor, trustee or guardian of the person to whom the deceased is married at the time of death (s 14 Succession Act 1981 (Qld) (Succession Act)).
Unless a will specifically states otherwise, divorce will automatically revoke any provision in the will in favour of the former spouse, except for an appointment of that former spouse as trustee of property left by the testator on trust for beneficiaries that include that former spouse’s children. Any provision in a will that appoints a spouse as executor, trustee of certain trusts or guardian is also revoked when that spouse is divorced (s 15 Succession Act).
The entering of a civil partnership has the same effect as marriage (s 14A Succession Act) and the ending of a civil partnership has the same effect as divorce (s 15A Succession Act). As such, all references to marriage and divorce apply equally to the entering and ending of a civil partnership.
Once a will has been made, it cannot be validly altered by:
- obliteration (rubbing out)
- interlineation (writing between the lines)
- deletion (crossing out)
- addition (writing new clauses)
- writing in anything at all affecting the will
unless these alterations are properly executed by the testator in the presence of two witnesses (s 16 Succession Act). If such an alteration is made without being properly executed, it may be of no effect, unless it can be proved as an informal will under s 18 of the Succession Act.
However, testators may correct the text of their wills before they are signed. If any typing or handwriting mistakes occur when the will is being prepared, these should be corrected before the will is signed. If this is done, the testator and both witnesses should initial any alteration as close as possible to the alteration itself. This is usually done in the margin. If this is not done, the court will assume, in the absence of evidence to the contrary, that the alteration was made after the signing of the will, and the alteration may not be effective. However, such alterations may be effective, even if they are not initialled, if a witness to the will can confirm that the alterations were properly executed by the testator and the witnesses. Alternatively, the alterations may take effect as an informal will under s 18 of the Succession Act.
When several mistakes are made in the preparation of the will, it is preferable for the will to be completely rewritten or retyped before it is signed.
Updating the will
A will can be updated by:
- revoking the existing will and making a new one
- making a codicil. The codicil may delete, add to or in some other way relate to the provisions of the will. It must conform to all the formalities of a valid will (outlined above) and must refer to the original will.
It is preferable to make a new will incorporating the change and revoking the former will, rather than make a codicil.
Revoking the will
When a will ceases to have legal effect, it is said to have been revoked. A will is revoked if the testator:
- marries after making the will (subject to the comments made above under the heading Marriage and Divorce)
- makes specific provision in a later will to revoke all former wills
- makes a later will that is inconsistent with a former will. When this occurs, and when the testator has not expressly revoked the former will, the former will or wills will be revoked only to the extent of the inconsistency. A codicil is usually prepared where part only of a will is to be revoked and new provisions inserted into the will
- destroys the will with the intention of revoking it, such as by burning or tearing the will. The will may be destroyed by the testator or by some person in the testator’s presence and at the testator’s request
- obtains a divorce after making the will. Divorce will not cause a will to be revoked entirely (see Marriage and Divorce above) (s 13 Succession Act).