ACT Modifying an Existing Will

[Boutross]

Hi, I am seeking some advice on modifying my current Will.

I had a Will professionally done a few years ago, and since then have another child and have become divorced. To that end, I would like to modify a few paragraphs of my current will.

I believe it is quite a basic Will and there is a section where my estate is divided up into a number of shares. All I am wanting to do is change the division of shares so that my ex-wife no longer receives everything (she will still get a portion), and the children (1 adult, 3 minor) are apportioned an amount of shares in the estate. So its basically a few paragraphs where I will change a share number and some names. The rest of the will with all of the definitions and conditions remain the same.

I have inquired with the original Law firm about the cost to modify the will, and it ends up being about $100 cheaper than getting another completely new Will done up by some other firms. I'm not a huge fan of spending hundreds of dollars to make a few straight forward changes.

I won't be leaving anyone in my family out of the will, my ex-wife will be receiving some, as will the children so I'm not anticipating any dramas. I'm sure that's been said before, but everyone close to me with a reasonable claim to anything will be receiving something.

So my question is, are there any big issues with changing the share allocation myself as opposed to forking out the cost of basically a new Will?

The original Will does have the name of the law firm that created the original so would it be best to remove that as I've obviously changed their work? Any other things to consider?

Thank you.

 

[Perp]

Yes, there are big issues with codicils, and most succession lawyers will advocate preparation of an entirely new will. Why? The reasons include but are not limited to:

1. You must refer to the prior will exactly, and if you make a minor error, such as getting the date wrong, it can throw your whole will into doubt. If the will you intend to modify was dated 4 Aug 2014 and you inadvertently put 4 Aug 2015, the court will question whether there's a 'missing will' of 4 Aug 2015. While it will eventually get sorted out, it may result in lengthy delays in your estate being administered.

2. For the codicil to be valid, it must meet all the formality requirements with respect to witnessing etc that a will does. These are easy to get wrong - there are many cases on this point - and ensuring the will is validly witnessed is one of the things that you pay a solicitor for. If the solicitor gets it wrong, they have professional indemnity insurance for your heirs to litigate. If you get it wrong, the codicil will (likely) simply be deemed invalid.

3. A codicil is a testamentary document, just like a will. Every time a lawyer has a client make a will or codicil they make extensive notes about the client's testamentary capacity in the event that the document is challenged after your death. They also confirm that the will/codicil is being made by the testator's free will, without undue influence. Who will testify on these points if you do your will/codicil yourself?

4. The codicil and the will must be kept together, and shouldn't be stored somewhere that you have access to. The reason why is something called the 'lost will doctrine'. If an original will (or codicil) can't be found after death, and it was stored somewhere accessible by the testator, then the courts assume that the testator physically destroyed the will, which invalidates it. If, however, the originals are with a solicitor, and you just have a copy, the copy can be admitted to probate if the solicitor loses the original. (But not the other way around; the logic being that if the testator had wanted to revoke the will by destroying it, they'd have contacted the solicitor and asked them to destroy it.) So the originals ideally should be kept in safe custody with a solicitor. Most solicitors provide this service along with their wills service.

 

[Rob Legat - SBPL]

Get a new will done. You're trading a 'couple of hundred dollars' for the possibility of making an error which will cost much more than that in time and money.

 

[Boutross]

Hi Perp,

Thank you for that detailed explanation. I'll definitely get back to a solicitor to sort it out.