It’s Never Too Late to Amend Your Will
May 12, 2020
Many people in the Myrtle Beach area take pride in the fact that they have drafted a comprehensive estate plan and that disposition of their assets will be controlled by a well-drafted will. Then something unexpected happens. A spouse dies. Or a couple gets divorced. Or a family business experiences an unexpected downturn. Or a person remarries after a divorce or the death of a spouse. Each of these events – and the list can easily be lengthened – can be genuinely life-changing. One of the essential elements in a person’s life that can be changed by such an event – but often is not – is a person’s will.
Sometimes, the death of a spouse can render a will almost meaningless if most of the estate is left to the deceased spouse. The same result applies if a trust has been used to shield the estate from state or federal estate taxes. Many wills, of course, contain alternate bequests to allow for the death of an heir, but such an event usually makes review of the entire estate plan a necessary exercise.
Amending or changing a will follows the same process as drafting and executing the original will. The maker of the will – the “testator” to use the correct legal term – must have possessed sufficient mental capacity when the amended will was executed. The amendment must be in writing and signed by the testator. At least two persons, also possessing sufficient capacity, must witness the signing and themselves sign the new will or the amendment (called a “codicil”). The codicil, like the original will, may be made “self-proving” if the testator and at least one witness execute an affidavit stating that the will is the testator’s free act and deed.
Codicils are usually employed to make minor changes that do not require major alterations of other provisions. A will cannot be amended by an oral statement. Like the original will, the amended will or codicil should be stored in a safe place with copies distributed to anyone who may have an interest in the will or in a particular bequest.
Occasionally, a codicil will offend one or more of the heirs named in the original will. An offended heir may commence a law suit to challenge the validity of the codicil. A common ground for a challenge that claims that the changes now favor one heir over all the others is called “undue influence.” The heir challenging the changes must prove that the newly benefited heir exercises undue influence over the testator and that the testator’s decision to amend the will was not the testator’s free act and deed. (Similar arguments are often used to challenge the validity of the original will.)
Most experienced estate attorneys will advise clients to periodically review their wills and estate plans to spot bequests that need revision. Waiting for a domestic calamity is not usually an accepted estate planning tool.