If you have made a will, or you are an executor or beneficiary, you should never alter the will yourself after it has been signed by you/the will maker without legal advice.
This includes everything from correcting spelling mistakes by hand, adding or changing clauses in the will by hand, removing pages, damaging the will including creases or tears or even something as simple as removing a staple.
A will is a legal document that sets out a person’s wishes regarding the distribution of their assets after death. There are formal requirements for the execution and alteration of wills set out in a law called the Succession Act 2006 (NSW) (“the Act”).
If these requirements aren’t complied with, the executor/administrator of a deceased person’s estate can run into a range of problems when it comes time to obtaining a Grant of Representation (probate).
Legal requirements for altering a Will
Section 14 of the Act says that a will may only be altered after it has already been signed if the alteration is made by or at the direction of the will maker in the presence of the witnesses who witnessed the will maker execute the will. The will maker and the two witnesses then need to place their signatures in the margin or on a part of the will beside, near or otherwise relation to the alteration.
If alterations, such as hand amendments, are not done in accordance with Section 14 the alterations risk the will being deemed not validly executed, even for something as simple as fixing a spelling mistake.
The consequence of this is that to get a Grant of Representation (probate) your executor or administrator will need to apply to the Supreme Court of NSW to dispense with the formal requirements of the Act (known as a “Section 8” application). To consider this, the Court will require affidavits (written statements) from relevant witnesses explaining the circumstances in which the alterations were made, how and when the will was executed by the will maker and evidence that the will maker intended for the alterations to officially form part of their will.
This is particularly problematic when a will-maker makes hand-written changes to their will with no witnesses – as there is no one to provide the evidence required under Section 8 of the Act meaning that the Court will probably reject the changes and could even reject the will entirely.
There are some common ways that people amend or alter wills that can lead to these types of problems.
Here’s a list of what not to do:
1. Don’t make hand amendments to a will without the guidance and supervision of a lawyer. This applies even if the will is your own will. Any change, big or small, can cause problems.
2. Don’t assume that handwritten or typed notes or amendments in a separate document (known as a “codicil”) will legally change your will. If not executed properly the Court may reject the note or amendment resulting in your wishes not being followed.
3. Don’t make physical alterations, such as removing staples, attaching additional pages, removing pages, or damaging the will as this may raise questions about whether the will has been tampered with or revoked. The Court may require evidence to establish that the will has not been altered or replaced, which can delay the administration of the estate, or worse, result in the Court rejecting the will entirely.
Here’s what you should do if you want to change, update or otherwise alter your will
If a will maker wishes to make changes to their will, the proper course is to execute a new will or a formal codicil in accordance with the requirements of the Act under the guidance and supervision of a lawyer.
A codicil is a separate document that amends, rather than replaces, an existing will and must be executed with the same formalities as a will.
In the age of computers and electronic records it is often more practical to execute a new will rather than making a codicil, depending on the circumstances.
Incorrectly amending a will almost always results in greater expense and complication for your executor/s and beneficiaries – and can sometimes lead to your assets not passing to the beneficiaries you want them to.
In short, seek legal advice!