The purpose of this article is to discuss how a person can properly change his or her Will, what happens if the change is done improperly and what effect marriage and divorce has on the Will. For a review of when a change might be necessary, please see my checklist Reviewing Your Will and Powers of Attorney Checklist.
Should a change to a Will be needed, then a document called a Codicil can be made. The Codicil refers to the original Will, then states the changes desired and then confirms the original Will. The Codicil must be executed in the same manner as the Will and therefore requires two witnesses who are present at the same time to witness the signature of the testator (the testator being the person who makes the Will and Codicil). The exception to the rule regarding witnesses occurs when the testator writes out the Codicil completely in his or her own handwriting, not typewritten, and then signs his or her name at the bottom of the Codicil.
Since Codicils are often short and simple, it is possible for one to prepare his or her own Codicil. However, there are a number of disadvantages in not having a lawyer draft and arrange for the execution of a Codicil. Firstly, it may be that the change will create certain legal or practical problems which the lawyer may advise against doing. Secondly, if the changes are such that someone may challenge the Will on the grounds of testamentary capacity or undue influence, it would be better to have the lawyer draft the Codicil and be present at the execution of the Codicil so to testify that the client was not unduly influenced and had testamentary capacity. Thirdly, the Codicil may be improperly drawn or executed. It is actually quite common that Wills and Codicils executed by non lawyers are not done right. Finding the witnesses where the lawyer did not arrange for the execution of the Will is also another practical problem. Fourthly, the Codicil will show the changes. This may not be desired if someone is being removed as a beneficiary or has their legacy reduced. Fifthly, it is better to keep the Codicil and Will together so that it is known upon death that there is a Codicil in existence and that may not be the case if the lawyer is holding the Will but not the Codicil. Sixthly, if the Codicil has to go to probate, there will be extra time and costs to prove the holograph Will. Generally, a Bank Manager’s Affidavit with the signature card is needed to prove the Will if it is a holograph. I may be biased because I am in the business of drafting Wills, but I believe the Codicil should only be used for temporary purposes and that the person should get a lawyer to prepare a proper new Will.
As it is just as easy and will cost the same to have a new Will drawn as it would be to prepare a Codicil and for the reasons stated above, I recommend that a new Will be prepared by the lawyer and that it be properly executed before the required two witnesses. At that time, the lawyer can also advise as to any changes in the law such as the Family Law Act, which might affect the original Will. Also, at that time, there would be a review to discuss whether there are opportunities for estate planning so to increase the size of the estate.
If one wants to make the changes himself or herself, then I suggest the form as shown in the appendix of this article be used. If the form is used and there are not two witnesses present at the time, IT MUST BE HANDWRITTEN BY THE TESTATOR to be valid.
Often people make changes on their original Will such as crossing out names or paragraphs. An alteration has no effect unless it is signed (not initialled) by the testator and two witnesses. Of course, if the Will is a holograph Will (completely in the handwriting of the testator) then the alteration is valid, if signed just by the testator. It is also improper to insert a new page in the Will without properly executing the whole Will.
Revocation by Marriage
A Will is automatically revoked upon marriage unless the Will specifically states that the Will is made in contemplation of marriage. There is the following exception. If a testator has a Will in which “x” is a beneficiary and he later marries “x”, then upon his death “x”, who is now the widow, has the option of taking the bequest given in the Will or taking her benefits according to law which apply when there is no Will.
Partial Revocation by Divorce
If after making a Will a person divorces his or her spouse then unless it is expressed in the Will to the contrary all bequests to the former spouse are revoked. Also revoked is the appointment of the former spouse to be the executor or trustee.
The following is a sample Codicil which must be witnessed by two witnesses who are present at the same time and observe the testator sign, otherwise it is not valid unless the Codicil is done completely in the handwriting of the testator.
The witnesses cannot be the executors or beneficiaries or spouses of the executors or beneficiaries.