Handwritten Modifications Explained
A handwritten change to a will, often called a "holographic" change after the famous 2010 Canadian case, involves any modifications written and signed by the testator themselves. For example, if they cross out the name of one beneficiary and replace it with another, or if they handwrite in a new executor to take the place of an old one. It can also involve more complex changes, such as completely swapping assets between life insurance policies, defaulting an estate to the laws of a different jurisdiction, or even adding a document into the estate plan. Because the law varies from province to province, some types of handwritten additions and deletions are more acceptable than others when it comes to challenging a will. For example , holographic additions and deletions are more widely accepted in British Columbia than in Manitoba or Newfoundland, to name a few. In some provinces, the handwritten changes must be witnessed, while in others, it doesn’t make a difference. In Alberta, for example, the will may be valid even though the testator added and deleted names of beneficiaries without any witnesses. Conversely, the court has considered a handwritten change that failed to have any witnesses to be invalid in Ontario. Whether or not the courts will accept handwritten changes to your will depends on where you live, who the witnesses are, and whether the changes were made while you were capable of making them. As a rule of thumb, it is best to seek out professional help from a lawyer before making any handwritten changes to your will.
Legal Standards for a Valid Will
To be valid, a Will must meet certain legal requirements. As a general rule, these requirements include that the Will must be signed by the testator, who must be of sound mind when signing the document. The document must also be signed by at least two witnesses and/or notarized. Under New York Probate Law, a Will is valid if it is in writing, signed by the testator at the end, and is either signed by at least two competent witnesses, or is acknowledged before a notary public. NY EPTL ยง 3-2.1. In New York, the testator may also execute a Will by letter or telegram (i.e. Monk v. Steer, 166 Misc 872 [Sup Ct, Genesee County, 1938]). In some circumstances, video Wills can be valid, however, video Wills are not recognized in New York and are unlikely to be admitted to probate in New York.
Can You Change a Will Legally By Hand?
In many jurisdictions, the answer is yes, with a caveat. There are states and countries where a testator may create a valid will by way of a handwritten note or message that does not comply with the requirements for a traditional, formally executed will. For example, in the United States, several states have laws that permit a testator to create a valid "holographic" or handwritten will. In these states, federal courts have upheld holographic wills as long as the writing is found to be "signed" by the testator, and is proven to be in his or her handwriting and intended to serve as the testator’s will. The same logic has been applied to the recognition of a holographic codicil – or handwritten amendment to an existing will.
Keep in mind that there are states that do not recognize handwritten wills or codicils: for example, Florida, New Jersey, and Ohio have all held that a holograph will is not valid unless executed in accordance with Florida law (and, thus, each requires the signing of the will by two witnesses at a minimum). A testator may still create a valid will by statute (e.g., "promptly" writing a will after becoming terminally ill), even in Florida, but the situation becomes shaky if the attempt is made to amend an existing will using a handwritten codicil that does not meet the testator’s state-law requirements.
In explaining its rejection of a handwritten codicil that evinced the testator’s intentions, a Florida appellate court recently explained the concern that plaintiffs’ interpretation of probate code provisions requiring testamentary writing material to be "undated" would nullify the requirement that a "will" updated by a "codicil" be signed by two in the presence of two witnesses. A California court recently refused to give effect to a handwritten amendment to a will. The court explained that the cancellation of a provision in the decedent’s will caused by an appeal to witness in a handwritten codicil would be nullified by the fact that the codicil was not properly executed.
The bottom line: while certain states allow for a testator to create or amend a will through an informal document, even in those states, the additional requirements for creating or revoking a will must be followed for the codicil to be effective. In other words, handwritten changes to a formal will may not have any impact on its validity under the law unless done correctly.
When Handwritten Modifications are Unenforceable
There are certain circumstances in which a handwritten change is invalid. The loss of the testator’s capacity is an obvious one, and handwritten changes will not be valid if the testator lacked testamentary capacity when he or she made them. In addition, if the testator did not understand what he or she was doing or the purpose of the changes, the handwritten changes will not be valid. Lastly, as stated above, handwritten changes will not be valid if witnesses are required under the law and those witnesses are not present for the changes being made.
In some cases, handwritten changes may actually negate the terms of the will. Suppose a testator makes changes to a prior Will. If those changes negate the prior terms of the Will without affirmatively naming a new beneficiary or providing for a new distribution, the handwritten changes may not be valid. Some state courts have also held that where a handwritten change is made subsequent to a formal signing of the Will, the handwritten change will not be valid because it appears to have been made under suspicious circumstances. For example, in a case where a handwritten change was made to the signature line of a self-proving clause on a page of the Will by a non-witness, the change was not valid because it appeared to have been made under suspicious circumstances.
How to Amend a Will
There are a number of instances when it becomes necessary to amend a will, for example, when there has been a change in one’s marital status (marriage or divorce), if someone designated to be an executor or trustee has died, becomes non compos mentis or resigns, or in the case of a person having family or business interests, it may be advantageous to bequeath or revoke a bequest.
The proper method for amending a will of a testator is to prepare a new will, revoking the old one and properly executing it. While it is possible to hand write a change on an original will, a beneficiary or a party contesting the will and/or any interested party may rely upon such notation to argue its validity or to question whether it is the actual intent of the decedent. Moreover, alleged changes may not have actually been made by the decedent. This is particularly so in cases where the decedent suffered from diminished capacity and other forms of undue influence by which other beneficiaries may have used the decedent’s decision-making capacity to their advantage.
There are times when a testator may choose to execute a codicil instead of a complete new will. However, regardless of whether a codicil or a complete new will is executed, the same formalities apply . The document must be in writing, signed by the testator, in the presence of two attesting witnesses who have actually witnessed him or her sign, and are themselves competent witnesses. They should not be related to the testator, and should not have any interest in the will or any of its provisions and be competent to testify regarding those circumstances.
If these formalities appear on the face of the amendment to the original will, and there is no proof to the contrary, then the probate court may uphold the codicil/amendment.
There are no formal requirements in order to revoke a will, except the intent of the testator to do so and a subsequent execution of a new will will do so, or a written statement of the revocation signed by the testator in the presence of two witnesses. However, this may give rise to the presumption that the subsequent will (that revokes the earlier will) revokes the codicil (i.e. a prior will that is formally Will A, then changes via Will B, and is later revoked by A).
The most prudent method of changing a will is to make a complete new will revoking any prior wills. In this way, all ambiguities are removed and the testator’s intent is clearly expressed.
What Happens When an Amendment is Invalid
When a testator makes changes to a will by crossing out language and inserting new provisions, careful courts will examine whether the marks are more in the nature of individuum manent et in aeternum voluntas testatoris, or whether they are more in the nature of the English Law "alteration," meant and made with the three indicia in mind – which would lead a foreign court to declare them ineffectual. Again, the trial court below will be in a fortunate position to hear the evidence on both sides and evaluate the final reality which s/he finds the facts to be. In a case where certain changes to a will by a testator were found to have been just a hasty afterthought at best and not intended, when made, to alter or eliminate any gift from the terms of the original will as executed, a court did not hesitate to declare the entire codicil void. A New Jersey court recently held that an amendment of a will, which next followed at the end of the original will, without other expression of intention, could not displace the previous terms of the will which had not been cancelled, and the intention of the testator to give priority to paying the debts of Sylvia’s former husband out of her estate must prevail over the ambiguity created by the attempt at codicil. In much the same manner, the dubious status of a handwritten alteration of an existing last will was the touchstone of the facts in another case, where the decedent sought to change the will executed in 1996 although he had told his attorney of a wish to change the 1996 will without producing anything further until his later execution of another will in duplicate in 1998. There was an issue as whether a codicil in handwriting sufficiently expressed the intent of the maker and the intent of the maker was not clear; therefore the 1996 will would prevail.
Consulting A Lawyer For Amendments of A Will
Amending or revoking a will certainly can be done by making handwritten changes to the document, but only if these changes are done correctly. If even a seemingly small mistake is made while making the changes, it is very possible for the courts to ignore them. For example, if the will does not specifically state that the testator intends to revoke the prior will, or if it does not contain the complete signature of the testator , then the document cannot be considered a legally amendable testamentary disposition.
Before making any changes to a will, you should always consult with an attorney who can inform you of exactly what actions must be taken in order to ensure that your changes become part of a new binding legal document. A lawyer can confirm whether the changes you want to make qualify as a legally binding codicil, or whether a new will is necessary to fully reflect your specific intentions concerning distribution of your estate after your death.