Attwood Marshall Lawyers Legal Practice Director Jeff Garrett recently joined Robyn Hyland for Law Talks on Radio 4CRB to discuss the essential steps for changing a Will after it has been signed. Life is unpredictable, and various events may necessitate an update or amendment to your Will; however, it’s crucial to follow the correct process to avoid potential ramifications or invalidation of the document.
The general rule of thumb is to update your Will every three to five years. However, significant life changes or shifts within your family unit might require earlier updates.
If a beneficiary or executor named in your Will dies, if you sell a significant asset you intended to gift, or you wish to add new beneficiaries, these are examples of when you might need to update your document sooner.
Although making minor amendments to your Will may seem like a simple task and tempt you to jot them down on the original document, this could invalidate your Will.
The case of Re Thomas [2023] VSC 344 illustrates the significant consequences of not executing changes correctly. Here, we tell the story of Mr Howard Edwin Thomas and what happened to his $4.5 million estate after he passed away.
A cautionary tale – the case of Re Thomas [2023] VSC 344
Howard Edwin Thomas, a former banker, died in July 2021.
Howard had executed a Will leaving behind an estate worth approximately $4.5 million, which he had gifted to his long-term friends. Howard had also appointed his friends the executors and trustees of the estate.
The Will had been drawn up by a law firm ten years before his death in 2011, and Howard was in possession of the original document.
Two months after his death, the original Will was found in a pile of messy paperwork on Howard’s kitchen table.
The names of the beneficiaries had been crossed out with black ink.
No other markings or alterations were made to the Will.
When the Will was put before the court, the court could only assume that the markings on the Will were made by the deceased and that he intended to revoke his Will.
Without any other evidence, the judge deemed that the markings effectively obliterated the names of the executors and beneficiaries, stripping the Will of its essential elements.
The judge ruled that Howard had died intestate, and his estate would be distributed according to the rules of intestacy.
Howard wasn’t married or in a de facto relationship and had no surviving immediate relatives. Therefore, one of Howard’s surviving six cousins applied for a grant of letters of administration to deal with the deceased estate.
This meant that the long-term friends who were initially left everything in Howard’s Will missed out. Was this Howard’s true intention?
What not to do
While Howard may have intended to redact his Will, his method left room for uncertainty and assumptions.
The markings also needed to clarify what changes he wanted to make and who he wanted to nominate as his executors and beneficiaries to replace the names he crossed out.
The alterations made to the Will were neither signed nor witnessed by anyone, so it was difficult to prove that no one had tampered with the document.
This underscores the importance of following correct procedures to update your Will and the importance of securely storing it to prevent tampering, damage, or misplacement, ensuring it can be relied upon when you pass away.
We see it all too often when a scrunched-up, old document that resembles a Will is found in the most obscure places by the loved ones left behind trying to sort out their friend or relative’s estate.
Failure to store the document securely may result in it being deemed invalid, or it could be lost forever, ultimately subjecting your estate to the laws of intestacy, as was the case with Howard’s 4.5-million-dollar estate.
Making changes to your Will
Before signing:
If you make changes to what is written in the original Will BEFORE anyone has signed the document, the testator must initial beside the changes, as well as the witnesses; then all parties must follow the correct process to execute the document.
Once a Will is executed, if you want to make minor changes, you must follow the process to execute a Codicil or revoke the existing Will and create a new one.
Making a Codicil:
A Codicil is a supplementary document that acts as an addendum to the original Will. It outlines any required changes and refers back to the original Will.
For a Codicil to be valid, it must be signed and witnessed in the same way a Will is, which means the testator must sign and date each page in the presence of two witnesses, and both witnesses must sign and date each page in the presence of the testator, using the same pen.
In Queensland, there is no limit on the number of Codicils you can attach to a Will; however, the more Codicils you make, the greater the risk of confusion or conflict arising about the changes being made.
A Codicil can be contested just like a Will. Therefore, if someone suspects undue influence, lack of testamentary capacity, or if the Codicil includes vague or confusing language or improper execution of the document, it could be scrutinised.
Codicils were much more popular in the days before word processors. This is because remaking a Will before modern technology intervened meant a lawyer’s clerk handwriting the entire document from scratch. Even after typewriters were invented, it was still a laborious process to retype a Will and much easier to prepare and sign a Codicil.
If you had a lengthy document, and only required a minor change to one of the terms within the Will, then it made sense to apply the change by making a Codicil.
However, in today’s electronic age, Codicils are far less common. Revoking the existing Will and redrafting a new document is just as easy (and a much safer way to change a Will!). Sometimes the original Will was misplaced and only the Codicil survived (or vice-versa), but unless you had both original documents, there would be problems getting probate.
Storing your Will
Will-makers can choose to store their Will wherever they wish. However, the importance of safe storage should not be discounted!
If you choose to keep the original document, it is essential to store it in a safe place that cannot be damaged by fire, flood, or theft.
Often, storing the original document with the law firm that drafted the Will can be the safest option. For this reason, Attwood Marshall Lawyers offers free storage to all Wills clients. We have a custom-made fire-proof strongroom located at our Coolangatta office, which was designed to safeguard vital legal documents and is only accessible by key personnel.
We offer this service free to all clients to ensure that original Wills and other important documents are always safe, giving clients peace of mind that their documents will never get damaged, lost, or stolen.
Clients can then keep a copy of their Will, digitally or in print format, for their reference.
Read more: Safeguard your Will: there can be costly consequences if the original document goes missing
Attwood Marshall Lawyers – experts in Wills and Estates
With one Australia’s largest and most experienced Wills and Estates teams, we can help you with all your estate planning needs. Whether you have never written a Will, if you have a complex estate plan that you need to update, or if you want to take advantage of our secure strongroom to keep your legal documents safe, we can help.
Our estate planning lawyers understand that your Will is an incredibly personal document that should reflect your current wishes as life goes on. We are here to ensure that your legal documents reflect your plans for the future, preserve your wishes and protect your family and assets.
To have your Will reviewed or updated or to discuss our estate planning services, please get in touch with our Wills and Estates Department Manager Donna Tolley directly on 07 5506 8241, mobile 0423 772 555 or email dtolley@attwoodmarshall.com.au.
You can also book online instantly by clicking here and booking through our website.
