On occasions it may be that the client has a current Will made that was either made some years ago which they would like a review of, or they have had a change in circumstances that warrant an amendment to their Will – this can include but is not limited to – children being born, relationships falling apart, or even new properties being bought.
In such instance even if they advise you that is the only amendment they want to make to their Will, it would be advisable to carry out a full fact find. The reason for this is that since the Will was last written, the client could have a greater value estate which will mean IHT planning that can either be done in lifetime or in the Will. They may have since divorced and want to provide for their new partner in which case an exclusion in the will of the previous spouse or civil partner may be required. There may even be children they no longer speak to that they don’t want to benefit in their Will. You may even see clients where you did not draft their previous Will and therefore will be unaware of how much of a fact find was carried out then.
Where a client wants to change their Will, it is always advisable to ask to see the previous Will and keep a copy if it on your file. The reason for this is that if their last Will signed 1 year prior left their estate to their children and this current Will they wish to disinherit their children and leave their estate to their neighbour for example, this is something you will then need to explore further such as the reasons for the significant change and whether there are concerns of undue influence.
Here are some common questions we get regarding amendment to a Will…
What if after issuing final Wills the client notices an error in a beneficiary’s name?
This can be corrected by either:-
- Amending the will and re-printing it for signing; or
- Have the client cross off the incorrect spelling of the name, write the correct name and then initial the amendment.
What if the client signed where they were meant to date it and vice versa?
This wouldn’t prevent the will going to probate as it’s obvious what has happened. The Registrar may request an affidavit of due execution which would cause delay. To avoid this, it would be best to re-do the attestation.
If an executor has moved address does the will need amending?
No it does not. If the address was correct at the time the Will was signed, it does not need to be re-written.
If the testator has moved address does the will need amending?
The only time a will would need to be updated if the testator moved address would be if it affected any gifts in their will. For example, if their will gifted property A to someone or to a trust, but they sell up and move to property B. In that case the gift of property A would fail as they no longer own it. The way to avoid this would have been to have worded the gift as a gift of property A or whatever such property I last owned and used as my main residence at the time of my death.
What is a codicil?
A codicil is a separate legal document which is used to make changes to, add to or retracts parts of a will. This document therefore negates the need for a new Will to be drafted.
As with a Will a codicil needs to be signed by the testator and also in the presence of two independent witnesses who must also sign the codicil.
When can a codicil be used?
It is normally best to use a codicil for small changes such as:-
- changing executors
- adding or removing guardians
- adding or removing a gift; or
- making amendments to funeral wishes.
When drafting the codicil the original Will must clearly be referenced. It should be clear as to the changes that are to be made and then a clause included to state that the other provisions of the Will remain unchanged.
Are there any risks with a codicil as an alternative to a new Will?
As it is written on a separate piece of paper and is not attached to the will, it could therefore easily be misplaced or even forgotten about. As there is no limit as to how many codicils can be written, where the client has several codicils, this is likely to cause issues as to the testator’s true intentions.
The codicil may also not have been drafted correctly that could likely cause issues at probate.
Another huge risk is that as the will writer, if you did not draft the original Will which the client is seeking to make amendments to, it is advisable not to draft the codicil as the act of making that codicil would mean that you would be accepting liability for the whole will and not just the codicil.
Where major changes are required or the client wishes to make a number of amendments, it is advisable for a new Will to be drafted.
For advice tailored to your circumstances, speak to one of our members. You can find a member in your area by entering your postcode on our Find a Member page or by calling the office on 01522 687 888.
