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Under the best-case scenario, a will is administered, and little or no disputes arise as to the distribution of assets to heirs and beneficiaries. However, there are circumstances in which an interested party listed in the will as an heir or beneficiary or a creditor seeks to challenge a will or contest the administration of the will. In these cases, a party seeking to dispute the administration of a will can present a will contest or as it is also referred to as a will challenge. A will contest involves an interested party presenting a claim to the probate court alleging that the administration of the will is improper. One can divide will contests into four major areas: challenge a will based on execution; interpretation; undue influence and fraud; and the enforcement of debt obligations against the estate.

Challenge a Will’s Validity
One of the most common issues leading to a will contest involves an interested party deciding to challenge a will based on allegations that is invalid either in how it was executed or its overall validity such as the fact that the will as a whole or certain portions of the will were the product of undue influence.

Firstly, a valid and legally binding will should be executed correctly in that it must comply with the technical requirements of a valid will. These technical requirements include

1. The will shall be signed by the testator, by some other person in the testator’s presence or by a conservator appointed by a court order.

2. A will typically should be witnessed by at least two persons. A will that does not comply with these requirements may be challenged by an interested party.

A will contest may arise if any of these requirements has not been met. Will contests of this nature allege that the will is invalid and should not be used as a reflection of the testator’s intent.

Challenging a Will’s Interpretation
A will’s executor works under the direction of the probate court to interpret any ambiguous clauses in a will. Ideally, ambiguous clauses in a will can be avoided through proper will drafting and estate planning; however this is often not the case and many wills to the detriment of estates contain ambiguous clauses that leave unclear directions as to how assets in the estate are to be disposed. Other cases arise whereby it is unclear whether a codicil or amendment to a will is to serve as an amendment to the will or serves to revoke the prior document in full. In these cases the will contest would center on evidence regarding testamentary intent which admittedly can be difficult in the absence of the testator.

Contesting a Will Based on an Allegation of Fraud or Undue Influence.
Situations may arise under which an interested party may challenge a will based on an allegation that the terms of the will were the product of fraud or undue influence. Will contests can center on whether a party may have exerted undue influence over the testator in order to secure some benefits from the estate. Common examples of this type of contest may arise from the fact a non-family member may have been included in a will to the detriment of family members. A will contest here may allege that the beneficiary may have exerted undue influence over the testator to secure a benefit from the estate. In these cases, the party contesting the will would be required to show through evidence that, but for, the undue influence or fraud of a third party, the testator would not have provided a gift to the beneficiary. The success of this type of will contest will hinge on whether a contesting party can establish facts that establish that third party acted with the intent to unduly influence or defraud the decedent to gain a benefit from their estate.

Contests to Enforce Debts or Other Contracts
An executor managing a decedent’s estate, must take into account all debts owed by the decedent. However not all debts may be apparent to the executor which may prompt a creditor to place a claim against the estate for money owed by the decedent. A will contest to enforce a debt or contract must provide sufficient proof, that while living, the decedent engaged was legitimately indebted to the creditor. In this type of will contest the probate court must look into the proof of the debt to determine if it is valid. However, it is important to note that creditor claims against an estate often are not paid on their full value if the estate does not contain sufficient assets to satisfy the claim. Further, certain distributions in an estate will hold priority status over creditor claims. Therefore, if there are insufficient funds to satisfy fully the claim the creditor making the claim may not be entitled to full recovery even if the debt is deemed valid.

When considering an estate planning strategy, planners often fall into assumption that a will is always required. The logic behind this assumption may apply in some cases; however, a number of situations may arise in which a will is not required or may be counterproductive to the overall estate planning strategy. Before asking when is a will needed, it is important to understand a will’s legal function.

What does a will accomplish?
On a basic level, a will is a written document that outlines how assets will be distributed upon death. An executor, named in the will, oversees this process while the estate is being handled by a probate court. Assuming everything goes according to plan, all estate assets will be distributed according to testamentary intent. However, estate planners often fail to recognize that in complex estates, things often do not go according to plan, in these cases a will can often create additional costs to the estate and insert unwanted confusion and ambiguity. Therefore, the law recognizes that a will is not a legal necessity to pass on assets; rather it is one of many options available to estate planners.

A will is not required for estate assets to pass to heirs or beneficiaries after the testator’s death. In cases in which the testator dies intestate (without a will); the law provides rules of inheritance that provide guidelines for inheritance in the absence of a will. Inheritance law provides some rules to address situations involving intestate succession. The first consideration will involve whether the decedent was married. If the decedent died while married, property would pass to the decedent’s spouse. However, if the decedent was not married, the estate is distributed to the decedent’s children, who receive estate assets in equal shares. If there are no children or spouse, the estate goes to the decedent’s parents. If there are no parents living, the property is distributed to the decedent’s brothers or sisters. If there are no brothers and sisters, or if they are deceased their children (decedents nieces and nephews) in equal shares. If the decedent’s sibling or their child (ren) are, the decedent’s grandparents will inherit the estate. If there are no living grandparents, then the decedent’s aunts and uncles, or if there are not any aunts and uncles, the decedent’s cousins will inherit.

Situations in which a person dies intestate, the probate court will attempt to ensure that the estate is disbursed in light of rules of inheritance. Of course, disputes may arise, or the validity of the distribution of estate assets may be challenged in these cases inheritance law would guide the court’s decision-making on how to resolve these disputes.

When is a will needed?
A will is not required to pass assets to heirs to beneficiaries; under some circumstances, it may simplify the process of handling one’s final affairs; however, it is not required. In fact, many jurisdictions allow a decedent’s estate to be disposed of without a will. Relying on what is known as the small estate designation an estate representative may transfer the title to property and administer the decedent’s accounts by presenting what is commonly referred to as a small estate affidavit. Normally, an estate must fall under a monetary threshold to qualify for the small estate designation; as such not all estates will be able to benefit from this designation. In situations in which the small estate designation is not appropriate estate, planners may still be able to avoid using a will with other estate planning tools.

A commonly held preference among estate planners involves either avoiding using a will as a tool to distribute assets; rather only relying on a will to express final instructions not related to the distribution of estate assets. Instead of a will, estate planners often rely on the wealth of estate planning tools that can be used to with greater flexibility and most importantly can reduce a number of assets that are exposed to the probate process or exposed to estate tax liability. Estate planners can rely on a variety of trust instruments or payable on death accounts to avoid using a will as an estate distribution tool. However, whether a will is needed depends on the assets in an individual’s estate and how these assets will be distributed.

When determining whether a will is needed, the most important consideration rests on the question: Does a will accomplish the intended estate planning goals. If the answer to this is yes, then one should consider could estate distribution be accomplished without a will. If the answer to this is yes, then one must consider whether potential costs and delay related to the probate process be avoided by not using a will. If yes, then one should consider the comparative costs and benefits of not using a will and using a will. The main takeaway here is that individual circumstances and intent will largely dictate whether a will is needed or not.

How Can We Help You?

If you would like to make a last will and testament, check out our Online Will Writing Software. It’s free to try and you can make a will in as little as 10 minutes. It’s also one of the leading estate planning softwares on the market. 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 have any questions about making a will or about any of our products or services, contact our customer service team who would be delighted to assist you.

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.

Codicil

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.

Ambiguity

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.

Cost

Testators who wish to make changes to a will often cite the cost of drafting a new will as the primary reason to make changes through a codicil. Given 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.

If you have any questions about our products or services, please contact our  customer service team, who would be delighted to assist you.