When a testator commits his final instructions to a will, it is not written in stone (figuratively). Rather, probate law recognizes that a testator may wish to change his will in light of family changes, changes in the law or changes in the inventory of assets listed in the will. As such, a will may require supplements or amendments to reflect changes in testamentary intent. Under these circumstances, a testator may wish to amend his will. We discuss how to amend a will in this article.
A testator may amend his will in two ways. The first method involves completely redrafting the will whereby the former will is revoked to make way for a new will that reflects the desired changes. The second method of amending a will involves drafting a codicil to the will, or a document that supplements or amends an existing will. The comparative benefits of these approaches largely depend on many circumstances including the scope and complexity of the original will, the desired changes from the amendments, how closely the original will complies with the current law, and the testator’s intent. Before examining the comparative benefits between a codicil and executing a new will, descriptions of the two are in order.
A codicil is a testamentary instrument, executed after the original will that amends or supplements provisions in the will. In addition to altering the will, a codicil may perform other functions such as republishing a prior valid will; validating a previously invalid will, or reviving a formerly revoked will that has not been destroyed. A codicil must also meet the same formalities to be executed the original will required. For example, depending on the jurisdiction, a valid will must be signed by the testator in front of two witnesses. As such a codicil must also be signed in the presence of two witnesses.
Drafting a New Will
In some cases, it may be prudent to draft an entirely new will that incorporates changes in testamentary intent rather than preparing a codicil. A properly executed new will holds the legal effect of revoking a previous will, given that the document’s language reflects the testator’s desire to revoke all prior wills. In this case, the language of the new will must indicate that the previous will is being revoked, and the current version reflects current testamentary intent.
Codicil or New Will?
Codicils were historically a necessity, as drafting a new will required a person to rewrite the entire document with the proposed changes. However, this limitation has been made a non-issue given the ease by which an electronic document may be entirely regenerated or amended by word processing software. Given the ease by which legal; documents can be created and edited the amount of work required to retool an existing will be compared to drafting a codicil may be marginal. Therefore, the choice hinges on which option will be more legally effective for accomplishing testamentary intent.
A codicil’s primary intent is to amend or supplement terms that exist in the original will. However, if the terms of the original will are already ambiguous, a codicil may lump further ambiguity on already ambiguous language. Further adding an ambiguously written codicil to a will may also hold the unintended effect of potentially revoking the original will thus making the codicil take on the status of a new will. In this case, a testator may have been better served to scrap the original will and draft an entirely new will to eliminate ambiguities and to incorporate the new material.
Testators who wish to make changes to a will often l cite the cost of drafting a new will as the primary reason to make changes through a codicil. Give the ease by which electronic documents can be edited, the cost differences between drafting a new will by repurposing material from the prior will may be less if not equal to the cost of drafting a codicil from scratch. Given that the primary goal of estate planning is to provide a clear succession of assets, the comparative costs, and benefits of drafting a new will outweigh that of drafting a codicil. However, if the changes to the will are minor one may consider that a codicil would be the most straightforward option.
As the discussions above illustrate, the legal questions surrounding amending a will, do not center on whether one can amend their will, rather the primary question centers on what method a testator should use to amend a will. With this issue in mind, whether to execute a new will or draft a codicil depends on the amendments required to represent adequately testamentary intent, without creating unnecessary ambiguity or confusion. As such, the question of how to amend a will should be answered according to individual circumstances.
How Can We Help You?
For more information on wills, read some of the other articles on this website.
You can also check out our book Make Your Own Last Will & Testament which takes you step-by-step through the process of making a will, and covers all of the important matters you need to consider when making a will. If you would prefer to amend an existing will, rather than creating a new one (which usually revokes your old will), check out our Codicil to a Last Will & Testament Kit. It will show you how to amend your existing will quickly and easily, and without the need for a lawyer.
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William is a personal finance journalist and writes on matters affecting people and their finances.