Changing Your Will
codicil (käd’ i sɘl, -sil’)
noun 1. an addition to a will, that changes, explains, revokes, or adds provisions
If you have a will, congratulations. That’s great. Now you want to change it. How do you do that? First: NEVER make changes to a will by inserting, crossing out, or doing anything to alter the will. Any change to a will must be made with the same formality as making the will in the first place. If you make notes or write changes on your will, according to the law you are doing one of two things, you’re either voiding the will altogether or making changes that will be ignored.
When we make a will, most of us hope that it will be the last time we have to deal with the fact of our mortality. But things happen: divorce, premature death, remarriage, birth of a special needs child, a rift with a sibling or a child or a parent, major tax law changes, hitting the lottery. There is no end of things that happen in life that force us to revisit our estate plan.
How do you want to change the plan? Blow the whole thing up and start over, or just cut out that charity that treated you so badly last year? Your choice is a new will or a codicil. In olden times, all wills were hand-written and supposedly in the same ink by the same hand. Then came typewriters that made reading easier, but the time to draft a will was still considerable. With the advent of word processors, wills got much longer so that all eventualities could be covered and eliminated the need to retype a page due to an error or the entire will if the client changed his or her mind. While there is still a lot of drafting done even with a thousand wills in a lawyer’s library, new wills aren’t as labor intensive as they used to be.
If a change is small and the client has finally gotten comfortable with all thirteen pages of the current will, then a codicil is probably the right choice. On the other hand, if a will that had no trust provisions now needs a special needs trust, starting over is probably the best choice to insert the trust provisions, trustee nominations and powers.
What about all the cases between these extremes? Byron Cannon, an Australian attorney, recently posted a list of considerations that work well in any country.
1. If the will is complex and the change simple, a codicil is best.
2. If the will is short and simple, drafting a new will regardless of the simplicity of the change is probably best.
3. If a life event such as marriage, divorce, death of a spouse has occurred, a new will is best. At the end of listing changes, a statement is made that the testator in all other regards republishes his or her original will. This would lead a court to conclude that the provisions for the ex-wife that didn’t get replaced were intended to remain in place. When there is a change in the spouse, trustee or executor, it’s better to start over.
4. If a former beneficiary has been cut out, making a new will is prudent. A codicil becomes one with the original will. Together they become public records when the estate is probated. A person probably doesn’t want it to be public record that his lifelong friend, Joe Smith, had been earmarked for a thousand dollar bequest but in 2001 he was cut out.
5. If a trust is created to manage the funds for a child or children, a parent might have second thoughts about how old they should be before distributing the last of the principal to them. If the distribution age is raised by codicil or worse in several steps by two or three codicils, the paper trail will leave a clear message to the child that their parent’s image of them repeatedly diminished. In short, any change that eliminates or delays a beneficiary’s inheritance should be done in a fresh document to spare hard feelings after it becomes too late to make amends.
6. Storage of the will and codicils should be considered. If a will gives the farm to the children after 10 years, then a codicil changes that to 20 years; there is a motive for the children to find and “disappear” the codicil. If you vary from the usual distribution scheme, it’s best to safeguard your will and codicils in a lock box or in some trusted person’s care to avoid any midnight post mortem estate planning.
Some personal advice: Do not give copies of your will to beneficiaries, executors or anyone named in your will. Do not verbally reveal what is in your will. Doing so sets up expectations that the writing of a subsequent will can dash.