Can I change my Will at any time? Can I change my Will myself? Can I amend, alter or update my Will without a lawyer?
This article outlines how to amend your Will and keep it up to date.
In the spirit of spring cleaning, many look to ‘spring clean’ their Wills.
Whether it be due to familial changes through marriages, divorces or births; financial changes through windfalls or losses; or any other personal changes, it would be necessary to reflect these in your Will.
Whilst there are numerous ways to change or update your Will, if a change is enacted incorrectly, it may have undesirable and catastrophic effects.
This article illustrates, with the use of examples, how to amend your Will and the potential pitfalls of which to be aware.
How can I amend my Will?
The ways to amend or update your Will are as follows:
Amending the face of the Will
By law, alterations made to a Will after execution are invalid unless the alterations are executed like a Will.
For this purpose, the initials of the testator and witnesses in the margin beside the alteration are sufficient.
An alteration made before execution is valid.
However, all alterations are presumed to be made after execution so, unless it can be proved that they were made before the Will was executed, they will be ineffective.
To avoid any problems, the safest method here is for the testator and witnesses to initial and date all alterations.
If the requirement that the alteration is executed like a Will is not adhered to, then the alteration is invalid and the original wording is admitted to probate, provided it is ‘apparent’.
The wording in the Will is ‘apparent’ if it can be read by ordinary means.
This includes close inspection through a magnifying glass or holding the document up into the light.
Where the original wording is not apparent, those words have effectively been revoked by destruction.
However, the rest of the Will remains valid and takes effect with the deletion of the obliterated words.
In some situations, namely where the testator tried to replace the obliterated words with a substitution, courts may hold that the testator’s intention to revoke the obliterated words was conditional on this substitution being effective.
As such, whether the original wording, the substitution or neither take effect, depends on the facts of the case.
We review these below.
In each of the following examples, the original legacy was £5,000. The witnesses are deceased and so cannot provide evidence as to the date of the alterations.
In each case, there is no date.
Thus, they will be treated as having been made after the Will was executed.
In clause (a), the alteration is not executed like a Will. The original wording is apparent and so the original gift of £5,000 will take effect.
In clause (b), the alteration is executed like a Will as it has been initialled by the testator and both witnesses. It is admissible to probate so Anna takes the £20,000.
In clause (c), the obliteration is treated as having revoked the legacy by destruction, so Anna takes nothing.
In clause (d), a court is likely to deem the obliteration as being conditional on the substitution being admissible to probate. As it is not (given it is not executed like a Will), the original gift will only take effect provided it can be established through other means, such as a copy or draft of the original Will.
As you can see, there are various potential dangers in altering your Will in this way.
Nonetheless, there are some circumstances where amendments to the face of the Will may be useful, such as to correct spellings or addresses or in urgent situations (for example, the testator is about to travel).
However, whilst it is tempting to make a handwritten change to the face of a Will, there is a risk that such amendments can be unclear or invalid.
For these reasons, any amendments should be made clearly in ink (preferably a ball-point) as any pencil marks to a Will which, itself, is written in ink, would be considered as contemplative and not final.
What are codicils?
A codicil is a document that amends, rather than replaces, a previously executed Will or codicil.
It supplements the terms of your executed Will, by adding to it, or amending or revoking a part of it.
It enables you to change your Will without making an entirely new one.
Codicils are useful when you want to make a few simple amendments to your Will.
For example, adding a new executor or legacy.
How do codicils work?
A codicil normally ‘republishes’ a Will on the date of the codicil.
It operates so that, effectively, it is as if the testator makes a new Will on the date of the codicil, in the form of the earlier Will as amended by the codicil.
How do I make a codicil?
Whilst there is no rule about the form of a codicil, the standard formalities for executing a codicil are the same as those for executing a Will.
As such, you must sign or acknowledge your signature in the presence of two witnesses who either sign or acknowledge their signature in your presence.
Examples of codicils
Here are two examples to demonstrate how a codicil works in practice:
1. Julian makes a gift to “my daughter’s husband”
The husband at the date of the Will is made predeceases Julian meaning the gift fails.
If the daughter remarries, the gift still fails.
However, if Julian executes a codicil to the Will, this republishes the Will so that the gift is interpreted as a gift to the daughter’s husband at the date of the codicil.
If the daughter has not remarried, the gift will be construed as being made to the first person to fulfil that description.
2. Tina makes a gift of “my car” without describing the car in any way
By law, this is presumed as meaning the car which Tina owns on her death as a Will ‘speaks from death’ in the absence of a contrary intention.
However, if her original Will refers to “the car that I own at the date of this Will”, the Will (as republished by the codicil) is taken to refer to the car that she owns at the date of the codicil, unless she states otherwise.
Making a new Will
If you have numerous or significant changes to make to your Will, the best option is to make a new Will.
This revokes all previous Wills and codicils you have made, provided an effective revocation clause is included.
It is the most effective way of reflecting big changes in your circumstances since the making of your previous Will or codicil.
Depending on the nature and extent of the changes you would like to make to your Will, there a several options available.
Whilst there are circumstantial advantages to altering the face of your Will or making a codicil to supplement your Will, there are potential pitfalls which could hinder your Will’s effectiveness.
As such, it is always best to obtain the help of a professional, regardless of the nature of the amendment you wish to make.
If you would like to change or update your existing Will, please contact Edward on 07368 526296 or email@example.com to get started and finished on leaving the legacy you want.