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Thursday, September 30, 2010

The worst ways to change your Will

Plans change over time. Over the course of years, people come into your life or disappear from it, your wealth changes, and your wishes for the distribution of your estate after you pass away are shaped by your experiences and your relationships. No wonder so many people want to make changes to their Wills. Unfortunately, not everyone who makes a change to a Will does so in a way that is going to actually bring about the desired change.

Many people want to change their Wills themselves without consulting a lawyer because they feel the change is simple, or they don't want to pay legal fees, or both. This doesn't always work out well. There are rarely explanations available for the speed and secrecy of home-made changes, which cause family members to become suspicious. Here are some of the wrong ways to go about changing your Will:

1.  Scribbling over or crossing out the parts you no longer want - Unfortunately, it may be impossible to tell whether it was actually you who crossed it out, or whether it was someone else who didn't like the contents of your Will. Remember, you won't be around to explain yourself when your Will is needed. Even if you initial the crossing out, this is likely not going to stand up to examination if the Will itself had been signed in front of witnesses who didn't also initial the crossing out. Also, there is the possibility that the words you cross out may affect the meaning of other words around it so that you change more than you meant to. Finally, there is the question of whether you had mental capacity to make changes at the time you did the crossing out.

2.  Writing notes in the margins - Similar problems arise with this as with crossing out, in terms of witnessing and mental capacity. Unfortunately, the inclusion of notes can be even worse than crossing out. Notes tend to be very cryptic to those reading them. It's rare that these notes can be fully understood by others due to abbreviations, lack of punctuation and lack of precision (such as identifying which policy, item or fund you are talking about).

3.  Inserting a new page - There will be questions about when the new page was inserted and who inserted it. It's unlikely to stand up as legally valid, largely because of witnessing issues. The issue of capacity arises again, and if the new page is favourable to a certain person, it may appear that the person influenced you to make the change.

4.  Destroying the Will - While this would certainly be legally valid, assuming you had the mental capacity to intend to revoke your Will, it has the unfortunate effect of leaving you with no Will at all. If you are going to destroy your Will, wait until a new one has been signed.

5.  Telling the lawyer you want changes but then never getting around to signing the new Will - I've been asked this question dozens of times. Clients believe that if they see the lawyer and talk about new wishes, this "means something" and will act as a new Will. It won't. You must actually sign the new Will to make it effective. A few times, clients ask whether they can just sign the page with the notes I've taken during the meeting. That won't work either.

6.  Telling everyone in your family that you're making a new Will but then not doing so - This is probably the worst of all. All you've done is create confusion after your death over whether your family has the right Will, delays while they search for the new one, and possibly suspicion over who "lost" the new Will. Talking about your intentions doesn't turn them into a legally enforceable Will.

The better approach is to have a new Will properly made to incorporate the changes you want. If the change really is small, you could keep the Will but have a brief Codicil made. A Codicil simply amends an existing valid Will. If the changes are to do with personal property such as household goods, jewelry, artwork or the contents of a workshop, perhaps a Memorandum of Personal Effects would be a good idea.

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