Changing a Will

Changing a Will when not of sound mind

In legal and medical contexts, a person is considered not of sound mind if they lack the mental capacity to make informed decisions, understand consequences, or manage their own affairs. In Australian law, particularly in matters related to wills, contracts, and legal decision-making, a person must have the required mental competence (testamentary capacity or legal capacity) to make valid choices. The following conditions may affect a person changing a Will when not of sound mind:

1. Dementia & Alzheimer’s Disease

• Progressive neurodegenerative disorders that cause memory loss, confusion, and impaired judgement.
• A person changing a will with dementia may no longer understand the nature of their financial affairs or legal decisions.

2. Severe Mental Illnesses

• Schizophrenia, bipolar disorder, or severe depression can impair a person’s ability to think clearly or make rational decisions.
• If the illness affects judgement, reasoning, or awareness of reality, they may be deemed not of sound mind.

3. Intellectual Disabilities & Developmental Disorders

• Individuals with severe intellectual disabilities or cognitive impairments may lack the capacity to understand complex decisions.
• Courts may appoint guardians or administrators to assist with legal and financial matters.

4. Brain Injuries & Neurological Conditions

• Traumatic brain injuries, strokes, or conditions like Parkinson’s disease or Huntington’s disease can impair cognitive function.
• Depending on severity, a person may lose decision-making capacity permanently or temporarily.

5. Substance Abuse & Intoxication

• Being under the influence of drugs, alcohol, or mind-altering substances can temporarily impair judgement and rational decision-making.
• If a person signs a legal document while intoxicated, it may be challenged on the basis that they were not of sound mind.

6. Delirium or Acute Medical Conditions

• Certain medical conditions, infections, or reactions to medications can cause temporary confusion or altered mental states.
• A person experiencing delirium may not be mentally competent until the condition resolves.

Testamentary capacity is assessed based on whether the person can comprehend the extent of their assets, recognise beneficiaries, and make decisions free from undue influence. If a person lacks capacity due to advanced dementia, any attempted changes to their will may be deemed invalid. In such cases, family members may need to apply to the Supreme Court for a Statutory Will, allowing the court to modify or create a will on behalf of the individual. To prevent disputes, it’s crucial to update a will as early as possible before cognitive decline affects legal decision-making. If you’re concerned about a loved one’s ability for changing a Will with dementia, seeking legal advice is highly recommended.

Why you should regularly update your Will

Many Australians assume that once they have written a will, their estate planning is complete. However, a will is not a set-and-forget document—it should be reviewed and updated regularly to reflect changes in your financial situation, relationships, and legal circumstances (like those mentioned above). Failing to look at changing a Will before death can lead to unintended consequences, such as assets going to the wrong beneficiaries or disputes among family members.

Common misconceptions about updating a Will

1. “I Only Need to Write a Will Once”

One of the biggest myths is that a will never needs changing unless something drastic happens. In reality, life events such as marriage, divorce, having children, or acquiring significant assets can impact your estate plan. For example, under Australian law, marriage generally revokes a will, unless the will was made in contemplation of marriage.

2. “My Will Automatically Covers New Assets”

Many people believe that a will applies to everything they own now and in the future, but this is not always the case. If you acquire new assets like property, shares, or businesses, they may not be distributed according to your wishes unless your will is updated.

3. “Divorce Cancels My Will”

Divorce in Australia does not automatically revoke a will, but it invalidates provisions related to a former spouse. If your will still names your ex-partner as an executor or beneficiary, this could create legal complications. It’s crucial to update your will after a divorce to ensure your estate is distributed as intended.

4. “Superannuation and Life Insurance Are Covered by My Will”

Superannuation and life insurance policies do not automatically form part of your will unless you have binding nominations in place. If you fail to update these nominations, your superannuation might go to unintended beneficiaries—such as an ex-partner or distant relatives—rather than those you intended to receive it.

Keeping your will up to date protects your loved ones

Regularly updating your will ensures that your estate is managed according to your current wishes, avoiding disputes and legal complications. If you’re unsure whether your will needs updating, consulting an estate lawyer or financial planner can provide clarity.

When to Use a Codicil vs. When to Write a New Will

Situation	Codicil?	New Will?
Changing executor	✅ Yes	❌ No
Adding a minor bequest	✅ Yes	❌ No
Updating addresses or minor details	✅ Yes	❌ No
Adding/removing major beneficiaries	❌ No	✅ Yes
Changing asset distribution	❌ No	✅ Yes
Multiple changes over time	❌ No	✅ Yes

 

It is recommended that a person should not make more than two to three Codicils. When there are multiple Codicils attached to a Will, there are good chances that either it may contradict each other or cause confusion. If the changes you are considering are significant, then it is recommended to write a completely new Will or consult a Wills and estate lawyer.

The only exception to this is if you make your Will in contemplation of the marriage. This means:

• The will must include specific wording stating that it is being made in anticipation of marriage to a particular person.
• If properly drafted, the will remains valid even after the marriage takes place.
• If no such clause exists, the marriage will revoke the will, requiring a new one to be made.

Unlike marriage, divorce does not automatically cancel a will in Australia. However, it does affect:

• Any provisions in favour of the former spouse, such as gifts or executor appointments, which are automatically revoked.
• Other aspects of the will remain valid, so a new will is still recommended after divorce to avoid ambiguity.

A pre-nuptial agreement (Binding Financial Agreement – BFA) outlines asset division in case of a relationship breakdown but does not override the automatic cancellation of a will. Even if a couple has a legally binding pre-nuptial agreement, a will must still:

• Be written in contemplation of marriage if the person wants it to remain valid post-marriage.
• Be updated regularly to align with changing legal and financial circumstances.

If you’re planning to get married or divorced, it’s crucial to review and update your will to ensure your assets are distributed according to your wishes. 

Can I change a Will without a lawyer?

Yes, you can change a will in Australia without a lawyer, but it comes with significant legal risks. Any changing of a Will without a lawyer must follow strict legal requirements under state and territory laws; otherwise, they may be considered invalid or legally disputed after your death.

Some of the risks that come from changing a Will without a lawyer include:

• Errors in wording may lead to misinterpretation, resulting in court disputes.
• Failure to meet signing and witnessing requirements can make the will invalid.
• Contradictions between an old will and a codicil can cause confusion and delays in estate distribution.
• Family members may contest the will, leading to expensive legal battles.

When should you use a lawyer?

Although you can change your will without a lawyer, seeking legal advice is strongly recommended if:

• You have a complex estate (e.g., business assets, overseas properties, blended family).
• You need to disinherit someone or prevent legal challenges.
• You are uncertain about legal requirements and want to avoid costly mistakes.

Changing a Will after death

In Australia, a will is generally considered final and legally binding once a person passes away. However, in certain circumstances, there can be grounds for contesting a Will or the Will can be varied under specific legal grounds. Below are key points related to changing a will after death in Australia:

1. Family Provision Claims (Contesting a Will)

• If a person believes they have been unfairly left out of a will or not adequately provided for, they can challenge the will under family provision laws.
• This claim is made under the Succession Act 2006 (NSW) or equivalent laws in other states.
• Eligible claimants typically include spouses, de facto partners, children, and dependents.

2. Rectification of a Will (Correcting Errors)

• If there was a clerical error or the will does not reflect the true intentions of the deceased, the court may allow changes to the will.
• An application must be made under Section 27 of the Wills Act 1997 (Victoria) or similar legislation in other states.

3. Mutual Wills Agreements

• If the deceased had a mutual will agreement with a spouse or partner (where both agreed not to change their wills), the court may enforce the original intent.
• However, disputes can arise if one party tries to alter the agreed-upon distribution of assets.

4. Statutory Wills (For Individuals Who Died Without Capacity)

• If a deceased person suffered from dementia or lacked testamentary capacity when making their will, family members can apply to have the will varied based on what the court believes they would have intended.

5. Intestacy Laws (If There Is No Valid Will)

• If no valid will exists, the estate is distributed under intestacy laws, meaning assets are given to the closest relatives based on a predetermined legal formula.
• Family members may apply for a court order to vary the distribution if it causes hardship or unfairness.

6. Executor’s Power to Vary a Will

• In some cases, executors and beneficiaries can agree to redistribute the estate, particularly if tax benefits or family agreements make a different distribution preferable.
• A Deed of Family Arrangement may be used to alter the inheritance structure with the agreement of all beneficiaries.

7. Fraud or Undue Influence

• If there is evidence that the will was forged or created under undue influence, the court may invalidate the will and reinstate a previous will or distribute the estate under intestacy laws.

While changing a will after death in Australia is not straightforward, legal avenues exist to contest, correct, or vary a Will in certain circumstances. If you believe a Will does not reflect the deceased’s true wishes, seeking legal advice promptly is crucial, as strict time limits apply to contesting a Will.

Consulting a Wills and Estate lawyer can help you navigate these legal nuances and avoid unintended outcomes. Feel free to contact our team of experts at Owen Hodge Lawyers. We can offer legal advice about changing your Will and estate planning.