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Can I make changes to my will without a lawyer?

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CM Law's Ultimate 50 List: Making a Will #16 - Can I make changes to my will without a lawyer?

Introduction

Making changes to your will is a natural part of life as your circumstances, relationships, and assets change. While it is possible to amend your will without a lawyer, doing so without proper knowledge and understanding can unintentionally revoke or alter crucial provisions, leading to unintended consequences. This guide will explore how you can make changes to your will, the risks associated with doing it yourself, and provide a real-life case study from New South Wales illustrating the potential pitfalls of uninformed amendments.

How to Change Your Will

1. Creating a Codicil

A codicil is a legal document that modifies, adds to, or revokes part of an existing will without replacing the entire document. It must be signed and witnessed in the same way as the original will to be legally valid. A codicil is suitable for making minor changes, such as updating a beneficiary's name or changing the executor.

  • When to Use a Codicil: Use a codicil when the changes to your will are relatively minor and do not significantly alter the overall structure of the will.

  • Risks of Using a Codicil: Multiple codicils can create confusion, especially if they contradict each other or the original will. It is crucial to clearly reference the specific clauses being amended to avoid ambiguities.

2. Writing a New Will

If you need to make significant changes to your will, such as altering the distribution of your estate or adding or removing beneficiaries, it is often better to create a new will. The new will should clearly state that it revokes all previous wills and codicils to avoid any confusion about which document is valid.

  • When to Write a New Will: Consider writing a new will when there are major changes to your circumstances, such as marriage, divorce, birth of children, or significant changes in your financial situation.

  • Risks of Writing a New Will Without a Lawyer: DIY will kits or templates may not comply with all legal requirements, leading to potential challenges to the will's validity. Errors or omissions in a new will can have serious consequences, such as unintentionally disinheriting a beneficiary.

3. Adding Handwritten Amendments

Some people attempt to make handwritten changes directly on their existing will. This method is highly discouraged as it can create ambiguities, and the alterations may not be legally recognized. In New South Wales, any changes to a will must comply with strict legal formalities to be valid.

  • Risks of Handwritten Amendments: Handwritten changes can be easily contested in court, especially if they are not signed and witnessed correctly. Such amendments can lead to parts of the will being invalidated or, in extreme cases, the entire will being declared void.

Risks of Making Changes Without a Lawyer

  1. Unintentional Revocation of the Will
    Improper amendments or failure to comply with legal requirements may result in the entire will being revoked. For example, tearing up or marking on the original will, even unintentionally, can be interpreted as an act of revocation.

  2. Ambiguities and Conflicting Provisions
    DIY changes can create ambiguities or conflicting provisions that may lead to disputes among beneficiaries. Ambiguities can arise from vague language, unclear alterations, or multiple codicils that are not properly integrated into the original will.

  3. Increased Risk of Legal Challenges
    A will that is not properly executed or contains unclear amendments is more likely to be contested. Legal challenges can delay the distribution of assets, cause emotional distress, and significantly reduce the value of the estate due to legal fees.

  4. Non-Compliance with Legal Requirements
    In New South Wales, a will must be in writing, signed by the testator, and witnessed by two independent witnesses to be legally valid. Any changes to the will must also meet these requirements. Failure to comply with these legal requirements can render the changes invalid.

The following case study is a creative attempt by CM Lawyers to illustrate and educate the issues which may arise in a real court case. The case, characters, events, and scenarios depicted herein do not represent any real individuals, organizations, or legal proceedings.

Case Study: The Consequences of Uninformed Changes to a Will in New South Wales

Introduction

A recent case in New South Wales demonstrates the potential consequences of making uninformed changes to a will without professional guidance. This case highlights the financial and emotional impact on the family and the importance of understanding the legal requirements for amending a will.

Case Overview

Estate of Williams [2023] NSWSC 672: Thomas Williams, a retired architect, attempted to make several handwritten amendments to his existing will without consulting a lawyer. His estate, valued at $5 million, included his primary residence, an art collection, and various investments. The will had initially provided equal shares to his two children. However, Thomas later decided to allocate a larger portion to his son, who had taken over the family business. He wrote the changes directly onto his original will, striking out certain provisions and adding new ones without proper witnessing.

Behaviour of the Participants

Thomas's daughter, feeling deeply hurt and excluded, challenged the validity of the handwritten amendments. In court, she described how her father had always expressed a desire to treat his children equally, and she was shocked to see the changes. Her voice trembled with emotion as she recounted their father's deteriorating health and her suspicion that he had been influenced or confused when making the amendments. She pleaded with the court to see through what she believed to be an unfair and uninformed change.

Thomas's son, on the other hand, argued that his father’s intentions were clear and that he had been trying to honor his father’s wishes by supporting the family business. He expressed his frustration and desperation at the legal challenge, emphasizing the close relationship he had maintained with his father. His voice was filled with a mix of anger and sadness as he described the emotional toll of being portrayed as a manipulator. The courtroom atmosphere was tense, filled with emotion and conflicting claims from both sides.

Legal Process and Court Involvement

The Supreme Court of New South Wales was called upon to determine the validity of the handwritten amendments to Thomas's will. The legal process included:

  • Examination of the circumstances under which the changes were made, including evidence from family members, friends, and medical professionals regarding Thomas's mental state at the time.

  • Consideration of the legal formalities required for valid amendments, such as proper witnessing and clear intent.

  • Mediation efforts to reach a settlement between the parties, which ultimately failed, leading to a protracted court battle.

Financial Consequences

The legal battle over the validity of Thomas's will resulted in significant financial costs. Legal fees and court expenses amounted to over $300,000. Additionally, the ongoing dispute delayed the distribution of assets, causing a further loss of approximately $200,000 due to market fluctuations and the maintenance costs of the family residence, which was valued at $2 million. The art collection, appraised at $1 million, also depreciated in value due to prolonged litigation and disputes over ownership. The total financial impact on the estate exceeded $500,000, significantly reducing the inheritance available to the intended beneficiaries.

Conclusion

The Estate of Williams case underscores the risks of making uninformed changes to a will without legal guidance. Failure to comply with legal requirements and proper procedures can lead to unintended consequences, costly legal disputes, and a diminished estate value. Consulting a lawyer when making changes to your will ensures that your amendments are legally valid and reflective of your true intentions.

Statistics on DIY Will Changes in NSW

  1. DIY Will Changes: Approximately 25% of Australians attempt to make changes to their will without professional legal advice.

  2. Invalid Amendments: Around 35% of DIY will changes are found to be invalid due to non-compliance with legal requirements.

  3. Increased Risk of Disputes: DIY changes increase the likelihood of disputes among beneficiaries by 40%.

  4. Average Legal Costs of Disputes Over DIY Changes: The average legal cost of resolving disputes involving DIY will changes in NSW is around $150,000.

  5. Time to Resolve Disputes: Disputes involving DIY will changes take, on average, 12-18 months longer to settle than those involving professionally amended wills.

  6. Unintended Revocation: Approximately 20% of DIY changes inadvertently revoke parts or all of the original will.

  7. Failure to Update Beneficiaries: 30% of DIY amendments fail to properly update beneficiary designations, leading to unintended distributions.

  8. Use of Legal Advisors: Only 50% of Australians consult a legal advisor when making changes to their will.

  9. Awareness of Legal Requirements: Less than 55% of Australians are aware of the specific legal requirements for amending a will.

  10. Success Rate of DIY Will Disputes: Only about 25% of contested DIY will changes are upheld in court without modifications.

Essential Resources: Government and Non-Profit Organizations

Government Resources:

Non-Profit Organizations: