People often wonder the best way to update or change their Wills. There are in fact some firm dos and don’ts in this regard. The formal requirements for a validly executed Will, or amendments to a Will, are set out in the Wills Act 1837 (yes, that old). This states that, in order for a Will to be validly executed, it must have been signed by the testator (person whose will it is) in the presence of two adult witnesses. The witnesses must both watch the testator sign the Will, must both be present at the same time, and should both sign the Will in front of the testator. It is also worth noting that the witnesses should not married to any beneficiary and cannot be beneficiaries themselves.
There were some slight variations to these requirements introduced in 2020 to allow Wills to be executed during the pandemic, however these only extended the meaning of “presence” to include video conferencing. These rules are so open to challenge that many professionals have avoided using them in all but the most extreme cases. So, how can you alter your Will?
Codicil
One way to alter a Will is to prepare a codicil. This is a separate document which confirms the part of the Will to be altered and sets out the new provisions. Codicils are usually in a similar format to the Will and have the same witnessing requirements. There are however a few things to be wary of with codicils: (1) If they are unclear then they can significantly impact the Will and can have unexpected consequences, including leaving a part of the estate undistributed (known as a partial intestacy). (2) Codicils must be sent for probate together with the original Will. When the grant of probate is issued both documents become public. We therefore advise against using codicils to remove beneficiaries or if the distribution of the residue of the estate is being changed as this can open the estate up to challenges from disgruntled beneficiaries. (3) Codicils republish the original Will, as at the date of the codicil. If the original Will is old then this may not be appropriate as changes in law may not have been considered.
New Will
The best way to alter a Will is to prepare a new Will. Wills should include a revocation clause, effectively confirming that the later Will supersedes any earlier Wills. The benefit of a new Will is that, on probate, no earlier documents need to be provided. The Will should also be considered in its entirety with consideration given to any relevant changes in law or taxation rules. As the whole estate is being dealt with it also makes a partial intestacy a lot less likely. Due to the additional work required to ensure that codicils do not fall foul of the risks listed above, there tends to be very little difference in terms of professional costs.
There are some things that should never be done in an attempt to alter a Will:
- Tipex or other non-branded correction fluids- this will never constitute a valid alternation and is likely to either result in the gift failing or the original gift remaining in effect.
- Along the same lines, but it will never be valid to cover over or stick alternative wording onto the Will.
- Striking through words- this will only be effective if the requirements of the Wills Act are met (i.e. signed and witnessed by two people). If the change is simply made and initialled by the testator (or not at all) then it will be invalid. Again, if the earlier words are visible then the earlier gift will stand. There is case law which states that for a gift to be removed, without the formalities being complied with, the original wording must be obliterated and it must not be possible to see them by any means, including holding the document up to a light. If the original gift is obliterated, but a replacement gift does not meet the required formalities then the gift will fail.
The safest way to alter a Will is to prepare and sign (correctly) a new Will. There may be some very narrow examples of times when a codicil would be appropriate. In either case, we would always advise you to take professional advice and assistance with preparing any changes. Under no circumstances should you write on your existing Will as this would simply create difficulties for your executors and would not constitute a valid alteration.
If you would like any assistance with updating your Will, or if you have questions about alterations that have been made to a loved one’s Will then please contact Ashley Minott on ashley.minott@allanjanes.com or on 01494 893518.