I drafted my own Will using a Will Kit a couple of years ago, but my circumstances have since changed and I want a few things altered. Is it okay if I just handwrite the changes in the margin and then sign and then date those changes?
Is it okay? The simple answer to this question is no, absolutely not; but the complex answer to why this is the case is not so straightforward. Firstly, a Will, or any changes made to a Will must be made in the presence of 2 witnesses. In either situation, each party must sign. If not, then according to the Wills Act when the document is lodged with an application for probate, the document may be referred to a Judge to determine if the handwritten alteration was actually part of the “Will” and that can become very expensive. According to the Wills Act, no alteration in a Will has any effect unless executed as a Will.
Consider the true case of Mr Barnes (name altered). He made a Will in handwriting using a Will Kit form on 8 December 2004. He appointed his wife as executor and left his whole estate to her. He provided for particular items to pass to certain people and then, if his wife died before him, his estate was to be equally divided between his two children, one of who was named the executor. One week later Mr Barnes’ wife was admitted to hospital with a heart attack and died. The following day Mr Barnes’ Will was placed with a bank for safe keeping and it was never removed until his death. It can be assumed therefore, that from the time the Will was lodged with the bank it was not altered. However, following the death of Mr Barnes a couple of years later, it was discovered on the original Will, the handwritten addition of a few lines in a different pen of various comments. This included words to the effect that the directions in his Will were to take effect only if his wife died before him.
This alteration was not signed or witnessed. In this situation the document was referred to a Judge who concluded that the handwritten alteration was made after Mr Barnes’ wife had a heart attack but before she died, one day before the will was lodged at the bank. It determined that the final few lines of handwriting were intended by Mr Barnes to constitute his Will. What this meant was that the Court decided these words meant that Mr Barnes wanted his Will only to operate if his wife pre-deceased him. As Mr Barnes’ wife had died before him, the addition of these words meant that the Will was virtually useless.
Accordingly, the Court determined that Mr Barnes died intestate (without a Will). Fortunately, in this case such a determination had little impact upon the final distribution of his estate. However, it serves to highlight the risks associated with making handwritten alterations on any Will (Will Kit or otherwise), with any changes being made in accordance with the requirements of the Wills Act.
Even the smallest blemish, mark, alteration (intended or unintended) on an original Will can cause significant difficulties, expense and delays in the administration of your deceased estate.
It is prudent to seek advice from a solicitor experienced in drafting Wills before making any changes to a Will. A solicitor is best equipped to provide you with appropriate advice related to the changes being made and the long term implications of such changes. Furthermore, any changes will be made with the ‘peace of mind’ that they are completed in a manner congruent with the Wills Act using documents such as a Codicil. For advice on Wills and Estate matters contact Greg Welden, Jason Coluccio or the team at Welden & Coluccio Lawyers.