Updating Your Will: When and Why It Matters

Making a Will is one of the most important things you can do to protect your family and ensure your wishes are followed after your death. However, many people assume that once a Will has been signed, it can simply be put away and forgotten. In reality, a Will should be reviewed regularly and updated whenever your circumstances change.

Life rarely stands still. Families grow, relationships change, people buy and sell property, and the law itself can change over time. A Will that was perfectly suitable ten years ago may no longer reflect your wishes or provide the protection you intended.

Keeping your Will up to date helps ensure that your estate is distributed in the way you want, reduces the risk of disputes and can save your loved ones unnecessary stress at an already difficult time.

Why Should You Review Your Will?

A Will should be seen as a living document rather than something that is written once and never looked at again. Even if you do not make any changes immediately, reviewing it every few years allows you to check that it still reflects your current circumstances.

You should also review your Will whenever there is a significant change in your personal or financial life. These changes may affect who you want to benefit, who you trust to deal with your estate or the practical arrangements you have put in place.

A regular review also gives you an opportunity to discuss your wishes with your solicitor and make sure your Will continues to comply with current Scottish law.

When Should You Update Your Will?

There is no legal requirement to update your Will after a certain number of years, but there are many situations where doing so is sensible.

Getting Married or Entering into a Civil Partnership

In Scotland, where an individual already has a Will in place before marriage or entering into a civil partnership , it remains valid afterwards in respect of any appointments of Executors and the distribution of their estate.

However, after marriage or civil partnership, even where there is a  Will, under Scots Law a spouse would be able to claim a share of the deceased’s estate. Legal Rights are a feature of Scots Law and only apply to the net moveable estate of the deceased ie.money, shares, cars, belongings etc. It does not include the value of any heritable estate i.e property. The surviving spouse would be able to claim one third of the net moveable estate (after all debts/liabilities have been paid) if the deceased was survived by children (or their issue if predeceased) or one half if no children or their issue survived.

It is therefore important that your Will reflects your current wishes and circumstances to avoid any unwanted results. If you are planning to marry or enter into a civil partnership, it is sensible to speak to a solicitor beforehand so that your Will can either be prepared accordingly or updated afterwards.

Divorce or Dissolution of a Civil Partnership

On the other hand divorce has an automatic effect on your Will, following the introduction of the Succession (Scotland) Act 2016.

There is therefore a presumption that an individual does not wish their former spouse/civil partner to inherit from their estate following a divorce.

If a former spouse/civil partner is appointed as an Executor or has been left assets in the estate, the former spouse/civil partner is treated as if they had predeceased, provided the deceased was domiciled in Scotland after 1 November 2016.

Even if some provisions no longer apply automatically, you may still wish to appoint someone different or change who inherits your assets.

Reviewing your Will following separation or divorce ensures your wishes are clear and avoids uncertainty for your family.

Having Children or Grandchildren

The arrival of children or grandchildren is one of the most common reasons for updating a Will.

In Scots Law, conditio si testator sine liberis decesserit presumes that a Will is revoked if a child is born after the Will was made, unless the Will narrates otherwise.

This is a legal presumption whereby if a Will does not make provision for children yet to be born is presumed to be revoked upon the birth of a child to the testator regardless of legitimacy. This presumption can be challenged if it can be shown that the testator intended the Will to remain valid despite the birth of a child.

Many parents also wish to ensure their children and/or future children inherit their estate in appropriate shares. They may also want to delay children receiving large sums until they reach a more mature age by using trusts within the Will.

If your children are still under the age of 16, your Will also allows you to nominate guardians to care for them if both parents die before they reach adulthood. Although the court always considers the best interests of the child, your nomination provides valuable guidance.

Grandchildren may also become an important consideration. Some people wish to leave specific gifts, contribute towards education costs or divide their estate differently once grandchildren arrive.

Changes in Family Relationships

Families change over time.

Relationships may improve or deteriorate; people may become estranged or new family members may become part of your life.

You may wish to update your Will if:

• you want to include a new partner;
• a beneficiary has died;
• you no longer wish someone to inherit;
• your relationship with a family member has changed;
• you wish to provide for stepchildren or other dependants.

Keeping your Will under review ensures it reflects your current wishes rather than those you had many years ago.

Changes in Your Financial Circumstances

Many people make a Will when they own relatively few assets. Over time, however, their financial position often changes considerably.

You may have:

• bought or sold your home;
• inherited money;
• started or sold a business;
• accumulated investments;
• acquired valuable personal possessions.

If your estate has increased significantly in value, your Will may no longer distribute your assets in the way you intended.

Specific gifts can also become problematic if they no longer exist. For example, if your Will leaves a particular property to someone but you later sell that property, the gift may fail entirely.

Reviewing your Will allows these issues to be addressed before they become a problem.

Changes in Inheritance Tax Rules

Tax legislation changes from time to time.

Although many estates will not be liable for Inheritance Tax, others may benefit from careful planning to reduce the amount of tax payable.

Changes in the law, property values or your own financial circumstances could mean your existing Will is no longer the most tax-efficient way of passing on your estate.

A review does not necessarily mean major changes are required, but it allows your solicitor to identify whether any amendments would be beneficial.

Reviewing Executors

Choosing an executor is an important decision.

Your executor is responsible for gathering your assets, paying debts, dealing with Confirmation and distributing your estate according to your Will.

Someone you appointed twenty years ago may now be elderly, in poor health or simply no longer the best person for the role.

You may also find that an executor has died or moved abroad.

Reviewing your appointments ensures the people named are still willing and able to act when the time comes.

Reviewing Guardians for Children

If your children are still young, your choice of guardian deserves regular consideration.

Circumstances can change significantly over time.

The people you originally nominated may have developed health problems, moved overseas or simply feel unable to take on such responsibility.

Equally, another family member or close friend may now be better placed to care for your children.

A periodic review ensures these important decisions remain appropriate.

Considering Legal Rights

One feature of Scottish succession law that is sometimes overlooked is the concept of legal rights.

Legal rights are certain statutory rights that a surviving spouse, civil partner and children may have to claim part of a deceased person’s moveable estate, regardless of what the Will says.

These rights do not necessarily prevent you leaving your estate as you wish, but they should be considered when preparing or updating a Will.

A solicitor can explain how legal rights may affect your estate and help ensure your wishes are properly planned.

Digital Assets Should Not Be Forgotten

Modern estates often include far more than houses and bank accounts.

Many people now own valuable digital assets or hold important information online.

Examples include:

• online banking accounts;
• digital photographs;
• cloud storage;
• social media accounts;
• cryptocurrency;
• websites and domain names;
• online businesses.

Reviewing your Will provides an opportunity to consider how these assets should be dealt with after your death.

It is also sensible to keep a separate, secure record of important digital information, such as account details and instructions, rather than including passwords directly in your Will, which may become a public document during the administration of your estate.

Should You Also Review Your Power of Attorney?

Updating your Will is often a good reminder to consider whether your wider estate planning arrangements are still suitable.

A Will only takes effect after your death.

A Continuing and Welfare Power of Attorney allows someone you trust to make decisions for you during your lifetime if you become incapable of managing your own affairs.

Many people update their Will but overlook the importance of having a suitable Power of Attorney in place.

Reviewing both documents together helps ensure that your affairs are protected both during your lifetime and after your death.

How Can You Update Your Will?

The best method depends on the extent of the changes required.

For relatively minor amendments, it may be possible to prepare a formal document known as a codicil. A codicil amends part of an existing Will while leaving the remainder unchanged.

However, if several changes are needed, you already have a Codicil in place or your circumstances have altered significantly, preparing an entirely new Will is often the safer and clearer option.

A new Will can avoid confusion, reduce the risk of conflicting provisions and ensure your wishes are expressed clearly.

Avoid Making Changes Yourself

Some people are tempted to write notes on their existing Will or alter it by hand.

This should generally be avoided.

Handwritten alterations, crossing out clauses or attaching additional pages may create uncertainty about whether the changes are legally effective. In some cases, they can even lead to disputes over the validity of the Will.

Any changes should be prepared properly and signed in accordance with the legal requirements applying in Scotland.

Taking professional advice greatly reduces the risk of mistakes and unnecessary legal costs which could cause difficulties for your family later.

How Often Should You Review Your Will?

Even if nothing significant appears to have changed, reviewing your Will every three to five years is good practice.

Regular reviews help ensure:

• your beneficiaries are still the people you wish to inherit your estate, rather than individuals whose circumstances or relationship with you may have changed over time;
• your executors and guardians remain suitable and willing to act, avoiding practical difficulties when your estate has to be administered;
• your financial information reflects the assets you currently own, including any new property, investments or valuable possessions acquired since the Will was signed;
• changes in the law or taxation have not affected the effectiveness of your estate planning, allowing any necessary adjustments to be made before problems arise.

A review does not always result in changes being made. Often, it simply provides reassurance that your existing Will continues to meet your wishes.

Conclusion

Making a Will is an important first step but keeping it up to date is just as important.

Major life events such as marriage, divorce, the birth of children, changes in wealth or developments in the law can all affect whether your existing Will still reflects your intentions. Regular reviews help ensure your estate will be administered as you wish and reduce the likelihood of unnecessary complications or disputes.

Your Will should evolve as your life does. By reviewing it periodically and seeking legal advice whenever your circumstances change, you can have confidence that it continues to protect the people and causes that matter most to you.

If you are thinking of updating your Will and you are looking for an experienced solicitor, then please contact our Private Client Team on 01324 622 888 or contact help@randa-fa.co.uk and we would be delighted to assist.