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How NOT To Amend Your Will

{Read in 7 Minutes} As a Trusts and Estates attorney, I frequently write Wills for people. From something simple to something complex, a Will is a very personal document that reflects a person’s wishes. Like with any other decision they make, the person may change their mind from time to time about the various components of their Will, such as who should be their Executors or their beneficiaries. When this happens, they need to make a change to their Will.

As the title of this article suggests, there is a right way and a wrong way to amend your Will. New York law requires that Wills be executed with a certain formality that is designed to show that the person had testamentary capacity, and also that two disinterested witnesses were asked to observe them signing the Will.

Whether they choose to hire an attorney or not is up to them, however, any change to the Will must be executed with this same formality. If they do not use these formalities, the Surrogate’s Court may have an issue and decline to probate the Will. Here are some common mistakes that people might make:

1. Handwritten revisions to the original Will. 

This is very common and almost always ends badly. Why? Because although the person spends a lot of time and gives a lot of thought to the changes they want to make, it is very unlikely that they are going to have two disinterested witnesses come by, observe them mark up the Will, and then  meet the statutory formalities by having the person and the witnesses all re-sign the Will.

In almost twenty years of Trusts and Estates practice, I have never seen anyone actually do this successfully. Very often, what I do see is a variety of cross-outs with names and dollar amounts or percentages changed, which the Court must disregard if the person didn’t properly execute their Will. Literally, the Court will ignore the handwritten changes and probate the Will as it was originally typed, even though that appears to no longer reflect the person’s wishes.

2. Informal discussion.

I’ve also seen situations where the person will call their Executor and say:

“Look, I have this Will, and I don’t want to bother redoing it, however, I want some changes. So, what I’m hoping that all I can do is talk to you. I’ve nominated you as the Executor of my Will and when it says, for example, give my Estate to a charity, I want you to disregard that and spread those funds equally among my three children.”

The person then dies, and the nominated Executor offers the Will for probate in the Surrogate’s Court.

Regardless of how clear the person was and how much detail the nominated Executor can give the Court about the person’s wishes, the Court will disregard them. If they are not done with all the formalities of signing a Will in New York state, the Court must disregard them, even if the change(s) was very clearly the person’s wish.

3. Subsequent writing not executed with all the required formalities. 

Same thing as above, except here, the person doesn’t just have a verbal conversation, they put it in writing. Maybe they send a series of text messages to the nominated Executor or an email, or perhaps they even go so far as to type something out and sign it. Maybe they even get their signature notarized. However, if they fall short of the requirements on any front, the Court cannot probate it. So, even though you have something written by the testator in each of these examples, none of them are witnessed, so all of them would be invalid.

Whenever I see this happen in practice, it’s always very disappointing because I believe that whenever a person makes their wishes known the law should absolutely respect them. However, the law must counterbalance that by ensuring that the wishes of this person, who’s now deceased, are not adulterated because the wishes were obtained fraudulently. The reason for the statutory requirements is to protect the wishes of those who choose to write Wills and ensure that those were indeed the person’s wishes, not someone exerting some sort of undue influence on them or otherwise forging or faking those wishes.

The correct way to accomplish this is to have the Will amended using all the statutory formalities. For most people that had Wills that were drawn up by an attorney, it’s often very cost-effective to go back to the attorney who wrote the Will. For example, I charge a flat fee to do most simple estate plans. If the person only wants a minor change, I charge them a mere fraction of the original flat fee that they paid. Why? Because it’s word processing for me, and assuming the change is minor, can be a relatively quick and simple update. The bulk of the time I put into it is in meeting with the client and supervising the due execution of the Will. By doing this, the person ensures that they follow all the statutory formalities, (in fact, New York law provides that a Will supervised by an attorney is entitled to a presumption of proper execution) and that the Court will respect their wishes.

Yes, it’s not as convenient as taking a pen and hand correcting the documents. However, for something as important as this, it’s worth the investment of time and dollars to do it properly.

For more information on this topic, please contact me

Thomas Sciacca

www.sciaccalaw.com
[email protected]
(212) 495-0317