We look at the way in which you can make amendments to a will and the potential pitfalls.
With the sight of daffodils and snow drops, there is a feeling of spring in the air. Along with spring cleaning the house, many look to ‘spring clean’ their wills and decide to make changes. Whether it is a case of adding a new legacy, or removing one, there are many ways to change a will. However, if a change is made in the wrong way, it may not have the effect you desired. In this blog, I will be looking at the various ways in which a will can be amended, and the effect that change will actually have.
Amending the face of the will
With a signed or unsigned will, it is tempting to make a handwritten change to the face of it. There is, however, a risk that amendments on the face of the will can be unclear or invalid. There are certain circumstances that it may be practical to make these changes. These include correcting spellings or addresses in the will or making urgent amendments (because, for instance, the person making the will (‘the testator’) is about to travel).
Any amendments should be clearly made in ink. Any pencil marks to a will which, itself, is written in ink would be considered as deliberative only (i.e. not final).
Enquiries are made on probate if amendments to the will are not attested in the same manner as the will i.e. initialled by both the testator and two witnesses. Alternatively, the will can be re-executed. It is advisable to refer to the amendments otherwise it is presumed that any amendments are made after execution. The re-execution should take place at the end of the will so as to include the amendments made.
An amendment that is not clearly executed has no effect, unless it obliterates the text of the original will. In that case, the text is treated as blank on probate and the original wording does not take effect.
Making a codicil
Another way to make a change to will is to prepare a codicil. A codicil is a document that amends a previous will or codicil, and is often stored with previous wills and codicils. It is a useful way of making a small number of changes such as adding or removing an executor or legacy. If it is the case that the testator wishes to make a large number of changes to their will, it would be more appropriate to make a new will to avoid overlooking any inconsistencies between the will and the codicil.
A codicil is executed in the same way as a will – the testator signs or acknowledges their signature in the presence of two witnesses who either sign or acknowledge their signature in the presence of the testator.
It is worth remembering that changes to a gift of all or part of the residue of an estate (the estate left once all of the liabilities in the estate, taxes and legacies have been paid) should specify who now receives that share of the residue. If not, there will be a partial ‘intestacy’ in relation to the revoked share and it may pass to family members who you never intended to inherit.
A codicil also has the capability to revoke all or part of a will, and to revive a will that has been revoked. In the case of Hoare Trustees v Jaques, the testatrix made a will in 1999 and a codicil to it in 2000. Later in 2000, she made a second will revoking the first will and codicil. Then, in 2004, she made a second codicil to the first will which amended a clause in the first will which didn’t appear in the second. The court held that the second codicil to the first will gave a clear intention of the testatrix to revive the first will and codicil and revoke the second will.
As such, the best advice is to seek the help of a professional, no matter how big or small the amendment you wish to make to your will is.