In 2021, we published a blog post on the subject of ‘When it’s time to update your Will’, covering some of the most common scenarios that should prompt a review. In the two years since, we have seen even more situations arise between families that should have led the testator to update their Will. Unfortunately, by the time some of these matters come across our desks, the testator has already passed away and left a family in dispute.

Updating your will to address changes which have occurred whilst you are still alive ensures peace of mind for you and your loved ones when you are no longer here to resolve the resultant disputes or misunderstandings which might otherwise arise.

Domestic Partners

While the previous blog post covered marriage, separation or divorce, it is also important to note that you should update your Will if you enter into a domestic relationship. Unlike a legal marriage, the forming of a domestic relationship (or ‘de facto’ marriage) does not revoke a Will. This means that, if you had an existing Will before you met your partner, there is no ‘automatic’ provision for them in your Will by virtue of the forming of that new relationship.

If you do not update your Will, your partner would have to seek a distribution from your Estate to obtain any share. If your family is all ‘on the same page’, this could be done through a Deed of Family Arrangement, but in most cases we see, the domestic partner must make a claim for “further provision” from the Estate. This can lead to the estate incurring a large amount in legal expenses and considerable stress, particularly if the domestic partner and the Executors are in dispute as to the true nature of the relationship. It is unlikely that the deceased testator would have envisioned their partner having to ‘prove’ their relationship to the Court, but that is a realistic scenario where a person has failed to update their Will to provide for their partner. This can especially be the case if the family of the deceased partner resides interstate, or overseas, and has not witnessed first-hand the strength and the depth of the relationship.


It is common (and usually recommended) for our clients that, if they propose to contribute funds to the purchase of a home by one of their children, they document such contribution by way of a loan agreement and ensure that a regular, if only notional, repayment is made to ensure the enforceability of the loan agreement does not lapse.

The loan document is only one part of the equation, however; it is also important for the lender to consider what should happen to the loan when they die if it is still outstanding either in whole or in part. Some clients wish, for example, for the loan to be forgiven on their death, possibly with the outstanding loan amount to be taken into account (i.e. ‘balanced out’) on the distribution of their Estate. Others want the loan to remain ‘on foot’ as an asset of their Estate (particularly if there is a discretionary testamentary trust) so that the asset protection provided by the loan continues if the relationship of their child and their spouse/domestic partner were to break down.

If no such instruction is made in the Will, the default position is to ‘call in’ the loan as an asset of the Estate, which may not be appropriate where a child has relied upon that loan to purchase their property. It is therefore vital that clients revisit their Wills when making a significant loan available to a beneficiary and update them if necessary.

On the other hand, we also see situations where a parent has ostensibly ‘lent’ money to a child without a current and enforceable loan agreement behind it. The ‘loan’ is therefore effectively a gift to the child with the result being that, If the child then predeceases their parent (an unfortunate, but not unheard of, scenario), the ‘loan’ amount is considered an asset of the deceased’s child’s Estate unless the presumption that it is a gift can be otherwise rebutted. This may lead to unwanted consequences, where such amount ends up in the hands of the deceased’s spouse or partner, with no ability to recall the amount should such widow or widower subsequently remarry.

While the most effective means of asset protection is a properly drawn and duly executed loan agreement, there are still ways to ‘ring-fence’ such an amount ‘after the fact’. For example, if a child has received an amount from their parents which was intended to stay in the family, the child can update their own Will to bequeath an equivalent amount back to their parents (or to siblings, if the parents predecease them). This prevents the dissipation of assets in the event of the child’s untimely death.


Our previous post discussed revisiting your Will due to the ill health of an Executor. An additional consideration is the health of beneficiaries. If a beneficiary has become disabled since you last made a Will, or the nature of their disability has changed, it may be prudent to update your Will in order to most effectively provide for them. Some beneficiaries who are in receipt of a Disability Support Pension (DSP) and who meet other criteria set by the Department of Services are eligible to receive their inheritance in a Special Disability Trust (SDT).

The SDT is a form of Trust created to house funds for a person with a disability which can be used to support them in their care and accommodation needs. Importantly, assets in the SDT up to a certain amount (currently $724,750) are not taken into account in the means test for the DSP and thus do not affect the beneficiary’s pension entitlements. Due to the strict requirements to establish an SDT in a Will, it is important that you receive proper legal advice in order to set up such a structure.

Though we all may like to believe that we can store our Wills away in a drawer and not touch them for decades, the reality is that our circumstances are constantly changing. If your current Will does not adequately address some of the above scenarios (or indeed any change in circumstances since its execution), it is most likely time for a review.

Please contact us today to organise a no-obligation consultation to discuss an update to your Will.