When you draw up a will as part of your estate planning, there may come a time when you quite naturally want to change it. Other times, a person may want to revoke his will or it may be contested.
Changing your will
“I have a will and want to change it. What should I do?”
You basically have two choices. One, you can draft a new will, expressly revoking your prior will. Or two, you can draft a “codicil” to your will.
A codicil is a supplement or addendum to your will that adds or deletes provisions or otherwise changes your will. It is subject to the same formal requirements as a will. In reality, a codicil is merely a later will that does not wholly revoke the previous one. There can be as many codicils to a will as you like, each either superseding prior codicils or leaving them intact and further supplementing the will.
One thing that you should not do is to make changes by crossing out parts of your will and adding in words or changing amounts or the names of beneficiaries. These changes will probably not work and will lead to confusion as to your real wishes. You will only be inviting someone to challenge your will (in a “will contest”) by making these kinds of changes on the face of the will.
Revoking your will
“When I executed my will, I left the original with my lawyer and took an unsigned copy with me. I now want to revoke my will, but I do not want to draft a new will right now. I want to think things over for a while, but I know I don’t want my old will to stand. What should I do?”
You should retrieve your will from you attorney and then revoke it by a physical act such as tearing, burning, mutilating or canceling. If possible, do this in the presence of witnesses and tell them that you are revoking your will.
Each state has rules regarding which acts will accomplish a revocation, so you might want to check with your attorney when you call on him for the will. Don’t call your attorney on the phone and ask him to simply destroy the will. To properly revoke a will by physical act, you must perform the act or have it performed by someone at your direction and in your presence.
In some states that permit handwritten wills, you can revoke your will by writing a statement declaring that you are revoking your prior will and then signing the statement. But as this will work in only some states that permit holographic wills, you are better off revoking by physical act if you are not ready to draft a new will.
A person who doesn’t get what he or she wants from a will might file a lawsuit challenging the validity of a will. This is called a will “contest”. (Usually, it makes sense to challenge a will only if the person will get more under state laws providing for property distribution if there is no will or if the person contesting took more under a prior will.)
Can somebody be too old to make a will?
“Dad’s will left me all his property. He wrote this will two years ago when he was 80 years old. My brother claims that dad was too old to execute a new will and that dad’s property should go to both of us under a will dad executed 20 years ago. Does he have a case?”
Not because of your dad’s age. There is no upper age limit after which one cannot make a will. The test is one of legal “capacity”, not age.
When your dad drafted his will two years ago, did he have the capacity to understand the nature and extent of his property holdings, who the “natural objects of his bounty” were, and that he was disposing of his property at death? If he did, he had the proper capacity to execute a new will. Many people, even those who suffer physical limitations, remain sharp as a tack well into their 80’s and 90’s.
What is "undue influence"?
“Dad’s will left me all his property. He wrote his will two years ago when he was 80 years old. I have lived near dad for the last 10 years, stopping in to see him at least twice a week. My brother, who lives across the country and who called dad only once a month, claims that dad’s will is invalid because of my close contact with dad. Is he right?”
If your brother files a will contest, to be successful he will have to prove that (1) you “unduly influenced” and coerced your dad to get him to change his will; or (2) you committed fraud by knowingly telling your dad lies to get him to change his will; or (3) that you breached a confidential relationship you had with your dad. These things are tough to prove, but if your brother brings such a lawsuit, you should see a lawyer right away.
Is a "no-contest" clause enforceable?
“Mom’s will left my brother $25,000 and her car. The rest of mom’s property went to me. My brother is claiming that mom “lacked testamentary capacity” and her will was the result of my undue influence. Mom’s will contains a “no-contest” clause, which states that anyone who contests her will should take only $1. If my brother files a lawsuit, will he lose his gift?”
This depends on whether he is successful in his lawsuit. If he wins, the judge will throw out your mom’s will and her property will pass according to any earlier will that might be found (if she had no prior will, her property falls under the laws of “intestate succession”).
If your bother brings a lawsuit and does not prevail, he may lose his gift under your mom’s will. Some states strictly enforce “no-contest” clauses, which would mean that your bother would not get the $25,000 or the car. Some states do not like no-contest clauses and do not enforce them. In these states, even if your brother lost his lawsuit, he would take what your mom left him under her will.