The Perils of a Codicil

In a previous post we highlighted the dangers of making quick changes to a Last Will and Testament. We discussed the reasons why you might want to update your Will and the different options available to you for making an update. There were two important pieces of advice in this post; never make a handwritten change to a Will by scratching something out and annotating the text with a scrawled message. Secondly, don’t make a codicil and attach it to your Will, you are far better off re-writing your Will and starting afresh than adding codicils and attaching them to the original document.

Just a reminder; a codicil is a document that makes reference to the original Will, describes the required change and is then signed and witnessed in exactly the same way as a full Last Will and Testament. In practice this rarely serves as a shortcut because the signing requirements are the same. Furthermore, it is probably more difficult to write your own codicil as it is to write your own Will as there are very few resources and tools available to help in the process. There is still a certain amount of “legalese” that needs to appear in a codicil; statements like “in all other aspects I reaffirm my Will dated …..” which is not a sentence that comes naturally to most people. Codicils were popular back in the day because it saved typing out the whole 5 page document again, but of course, in today’s world of computers and printers, there is absolutely no time-saving. Unfortunately, people have a dangerous misconception that a codicil can simply be written and attached to the Will and this attachment has the same legal weight as the Will itself. Don’t believe me? then this news article from earlier this week demonstrates exactly the issue. A woman’s stepfather sadly killed himself and left a suicide note, then according to the article he:

“also left an addendum to his will – increasing Decatur’s inheritance to $100,000. The bulk of Badini’s $1.18 million estate is going to a well-known children’s charity. In his first will – Badini, a member of the Masonic Lodge – willed everything to their Shriners Hospitals for Children. Despite Badini’s handwritten change – it, and two earlier revisions, known legally as codicils – are being challenged….Richard Lyon, the attorney representing Shriners Hospitals told FOX 5: “It is our opinion that the judge should not have accepted the codicils.” Lyon says a probate judge entered the will and the codicils before anyone from Shriners Hospitals was aware of them. Here is the problem. The changes Badini made were not signed by any witnesses. Maryland law requires two witness signatures.”

That the codicils were ever accepted by the Probate courts is a complete mystery; these handwritten amendments to the Will are completely worthless under the law of this jurisdiction.

So our message remains the same. The easiest way to keep a Will updated to reflect a change of circumstance or a change of heart is to use an online service like those at LegalWills.ca , LegalWills.co.uk and USLegalWills.com . You can not only create your Will, but you can return at any time to make an update and then create a new Will to reflect a change on your personal or financial situation. It’s bad enough that 70 percent of adults don’t have a legal Will, but even worse that most people with a Will don’t maintain them because it is very inconvenient and expensive to do so. This unfortunate case shows that while in a desperate state, the last thing on this man’s mind was booking an appointment with a lawyer to prepare a new Will.

Should you really write your own Will?

There will forever be two very divided camps on whether it is a good idea to write your own Will. On the one side will be the lawyers and solicitors who continually warn of the dangers of trying to “do-it-yourself” often illustrated by stretched analogies; “you wouldn’t perform your own brain surgery now would you?” and then there are the service providers like LegalWills who encourage people to take charge of their own estate planning and remind people that lawyers are there to help you with complex legal issues and offer you legal advice – there is absolutely no legal requirement to use the services of a lawyer to prepare your own Will. Everybody has a legal right to sit down and write their own Last Will and Testament without having to hire the services of a legal professional.

I thought today would be a good day to dissect one of the typical blog articles written by a law practice entitled “Dangers of Drafting a Last Will and Testament on Your Own” posted just at the end of last week. Here are the five key dangers and after each one, our response.

1.   “Wills you draft on your own are easier to contest as it is hard to personalize the specific needs of the individual drafting the Will, which can result in issues later on when interpreting the Will.”

Not really sure where to start with this one. Easier to contest is a strange claim because as we discussed in a previous post there are specific reasons why a challenge to a Will is likely to be successful. These are; mental capacity, undue influence, improper execution, fraud and lack of provision for dependents. There is nothing that makes a will written using software more or less likely to be challenged than a Will written by a solicitor as long as it is signed appropriately and no dependents are being disinherited. I am not sure why a software service like the one at LegalWills doesn’t allow for the “Personalizing the specific needs of the individual” and feel it is fear-mongering to suggest that a service like ours would result in a Will that is going to be challenged. In fact, Google “challenging of the Will” and all examples will be for Wills prepared by a lawyer or solicitor – so be warned, there is nothing in a lawyer prepared Will that makes it incontestable. Most newsworthy Will challenge today? Arturo Gatti – a will written by a legal professional in Quebec .

2.   “There is a greater risk associated with drafting your own Will regarding execution. For example, in Ohio, an individual’s Will needs to be signed at the end by the individual making it, and be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his/her signature.”

We really have to get over this one, it is not complicated. Yes, your Will has to be signed in the presence of two witnesses who have no vested interest in the contents of the document. They cannot be beneficiaries and in some jurisdictions, they cannot be the spouse of a beneficiary. It comes down to that suspicion of coercion or undue influence. Obviously a beneficiary witnessing the signing is going to look suspicious and that’s why it isn’t allowed. But, this is hardly a reason to seek legal advice from a lawyer. I would propose that anybody with the capacity to step through our service would be able to understand the signing requirements (and we describe them in a number of places). If you are not sure that you understand these signing requirements, then you should probably have your Will prepared by a lawyer.

3. “Wills drafted on your own may be difficult to update when life changing events occur such as divorce or a birth of a child.”

Utterly false. With a service like LegalWills.ca, USLegalWills.com and LegalWills.co.uk you can login to your account at any time, make a change, print a new document and sign the document in the presence of two witnesses to have a brand new, up-to-date Will. It could not be simpler and it is significantly more convenient and affordable than booking an appointment with your lawyer or solicitor every time you feel that you need to update your Will.

4. “Wills that are drafted on your own may contain errors, and therefore, make your will invalid by the Probate Court. If this occurs, it will be the Probate Court that makes the determination of how your estate will be distributed.”

Yes, and so may a Will drafted by a lawyer. However, being that you are preparing your own Will, you are at least likely to read through it to make sure that it reflects your wishes. We actually wrote a blog post discussing how important it is to understand your Last Will and Testament. The legal clauses inserted into our documents are the exact same clauses used by lawyers so if you read through your Will you are the person most likely to understand whether an error has been made.

5. “Additionally, you may believe that you are leaving all of your assets to a certain individual, but you may inherit assets from someone, which in turn may not be included as part of your Will. If and when that happens, your relatives may be contesting your Will in Probate Court.”

This might be one of the most convoluted reasons for steering people away from preparing their own Will I have ever seen. Any Will would include a residuary beneficiary who inherits everything after taxes, debts and specific bequests have been distributed. This example of one of the dangers of preparing your own Will makes absolutely no sense.

The blog post concludes “Bottom line, it is worth the money to have an attorney prepare your Last Will and Testament”. Unfortunately, if these are the best 5 reasons to not prepare your own Will, we would strongly recommend clicking one of the links on the top left of this page and you can have your legal Last Will and Testament in your hands in about 30 minutes.

I think I’ll wait until my life settles down…

Sorry for the brief hiatus….we’ve had a short leave from our social activities, but now we’re back with lots of interesting information and discourse.

We received an great question today into our support team at www.legalwills.ca . A prospective customer decided that they needed a Will, they had a husband and one child, but knew that they were planning on having additional children in the future. Should they write the Will now or hold off until their family situation became more settled?

We all know that everybody should have a Will and so the obvious answer is to prepare a Will now, and then update it whenever there is a change to the family situation, especially if this includes the birth of a new child. However, it is not always as simple as this. When you are using a lawyer to write your Will the cost can be significant; anything up to £600 or $800. If you know that the Will is only going to be good for a few months or a year, the cost is enough to make you think again and defer until the following year. One way people sought to get around this is to make the plan future-proof by including a statement like “shared equally between all of my children” without naming them. This works for adult children who may pre-decease you, but doesn’t really work for new children being born, as there are other items in the Will that would need to be set up for these as-yet-born children like Minor Trusts and personal guardians (the person who you name in the Will to look after the child in the event that anything were to happen to both parents).

The key issue here is that family situations are rarely static; there are births, deaths, marriages, divorces, not just for yourself but for your children, beneficiaries and Executors. The death of an Executor should prompt a revision of the Will even if an alternate is named simply because you would now be left with no alternate Executor.

Revisions of Wills at a lawyer’s office can be an expensive business. That is why a few lawyers discount their Will writing service because they can make good revenues in maintaining a Will, storing a Will or even administering a Will. Fortunately, online services like the ones at www.legalwills.ca , www.uslegalwills.com and www.legalwills.co.uk allow you to not only create your Will conveniently and cost-effectively, but they also allow you to login at any time in the future and make an update to your Will to reflect any changes in your personal or financial situation. People have asked in the past, “why would I ever need to change my Will? I know how I want to distribute my estate”. Just supposing however that somebody or some organization comes into your life and has a profound impact on you. So much so, that you may want to recognize this impact by way of a bequest or legacy. Even if your family situation doesn’t change, your priorities may, so it always makes sense to write your Will today, but keep an open mind to the propsect of updating it regularly in the future.