A will remains in force until the will-maker formally changes or revokes it. The fact that the will-maker's circumstances have changed does not mean that the will changes. The only exception is when a person marries or divorces.
Once a will has been signed, there can be no alteration by crossing out or writing in new clauses. Changes to the document will have no effect. However, you can correct the text of the will before signing it. If this is done, both the will-maker and the witnesses must sign or initial in the margin or near the alteration. If this is not done, the court will assume the alteration was made after the signing of the will and the alteration will not be effective.
Sometimes it is necessary to update a will. This can be done by adding a codicil to the will, although it is often simpler to make a new will altogether. A codicil is an addition to an earlier will in a separate document. A codicil has to meet the same formal requirements as a will.
It is very important that a codicil does not contain a clause cancelling or revoking previous wills or testamentary dispositions, otherwise it may cancel the will it was meant to update.
Revoking or cancelling a will
Section 11 of the Succession Act 2006 (NSW) sets out an exhaustive and expanded list of the means by which a will or part of it may be revoked.
- if the revocation (by will or otherwise) is authorised by a order under section 16 or section 18
- by marriage to the extent set out in section 12
- divorce or annulment of the marriage but only to the extent set out in section 13
- making a new will
- by some writing declaring an intention to revoke the will, executed in accordance with section 6,
- by the will-maker or someone in his or her presence and at his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it
- by the will-maker or by some person in his or her presence and at his or her direction, writing on the will or dealing with the will in such a manner that the court is satisfied from the state of the will that the will-maker intended to revoke it.
Revoking by marriage
A will is automatically revoked when the will-maker marries, unless the will was made in contemplation (anticipation) of marriage, whether a particular marriage or marriage in general (section 12).
There are new exceptions if you are married at your death to the person you have made a disposition to under your will.
If you are making a will in anticipation of marriage, you should consult a lawyer.
If you marry after making a will that was not made in anticipation of the marriage, you should make a new will, even if you want it to be the same as the old one.
Revoking by divorce
A divorce will not revoke the whole will. It will revoke:
- any gift to your former spouse
- the appointment of your former spouse as an executor, trustee or guardian (Succession Act, section 13) unless you express a contrary intention in your will.
A divorced person should make a new will rather than relying on the partial revocation provisions.
For further information see Contesting a will.
- Succession Act 2006 (NSW)
- Legal Aid NSW | LawAccess NSW - After someone dies has information about who to notify after someone dies, funerals, the will, dealing with the estate, after probate or administration, distributing the estate, and family provision claims, as well as flowcharts, forms and frequently asked questions.
- The Australian Death Notification Service is a collaboration of the Births, Deaths and Marriages registries across Australia. It aims to let people notify government and non-government agencies, organisations and institutions that someone has died, just the once.