Advisable to get advice before changing your will

Changing your will

A question from a reader: “If you move, is the will invalid if it has your old address on it?”

And another question from another reader: “Can we strike off the first-choice executor and initial it, and would the will still be legal? Can you write in a new executor or must a new will be made?”

And a lament from a third reader: “Every time I want to make a very minor change in my will, my lawyer charges me $275.”

You’ve spent a a lot of money having an “optimum” will prepared, with the full benefit of legal and estate tax advice. Can you now “do it yourself” to make changes? The short answer is yes.

I’ll get to that but first a caution that your will might no longer be optimum.

Your lawyer didn’t just plug your name and the names of executors and beneficiaries into a form document. That’s what I suspect you would get when using a will kit. Your lawyer learned about your life, asset circumstances and wishes and then drafted a will to best achieve your wishes.

Circumstances change over time. If things have changed to the point you want to switch an executor, perhaps there have also been changes to your life and asset circumstances that require additional changes to your will for it to be optimum.

Tax laws also change. An optimum estate plan today might no longer be optimum next year simply because of changes to our tax laws. The bottom line is it is advisable for you to consult with your lawyer and estate tax accountant periodically for review of your estate plan to ensure your will and other estate plan documentation continue to be optimum.

Now, on to the “do it yourself” advice.

Answering the first question, a change of address has no impact on a will. So, why do wills include addresses?

There is more than one Paul Hergott but only one who resides at a particular address. At some point I’ll move. There’s still only one Paul Hergott who, at the time the will was made, resided at that address. So no, moving does not invalidate your will because it has your old address on it.

In most circumstances, addresses are altogether unnecessary because other information will eliminate any uncertainty. But to be safe, lawyers typically include addresses to avoid that one in a thousand chance the identity of someone named in a will is ambiguous.

What about changing the name of your executor by crossing out the old one and writing in the new?

Yes. But you can’t just put your initial by the change. Quoting from section 54(2) of the Wills, Estates and Succession Act, the will-maker must sign “in the margin or in some other part of the will opposite to or near to the alteration”.

The will-maker’s signature must be witnessed in the same way that a will must be witnessed. There must be two adult witnesses present with you when you make your signature, and who then each sign in your presence. Neither witness should be a beneficiary.

There’s another, cleaner way. If you have an electronic version of your will that can be changed on your computer, or can create one with optical character recognition. You can make the change on your computer, print the amended will, and then sign it with the new date as your new will. Of course, you always need to follow the rules about witnesses that I referred to. Then destroy your old will.

Consider, when paying a lawyer to prepare your will, requesting an electronic, modifiable version of your will to make this easier.

I will end with another caution. You may benefit from legal advice about the change you wish to make.

The choice of executor is something that should be informed by legal advice. In future column, I will give some advice about that choice. Without legal advice, you might choose an unadvisable executor that results in a mess after you pass away.

Other changes might also benefit from legal advice. Going into a lawyer-prepared will and mucking here and there without fully understanding the legal reasons behind the provisions can be a recipe for disaster.

Do you have a question that you would like me to write about? Please e-mail me. I’ve been writing weekly about end-of-life matters since the end of January, 2024. If you have difficulty accessing past columns, please let me know.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.

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About the Author

Lawyer Paul Hergott began writing as a columnist in January 2007. 

Achieving Justice, based on Paul’s personal injury practice at the time, focused on injury claims and road safety.  It was published weekly for 13½ years until July 2020, when his busy legal practice no longer left time for writing.

Paul was able to pick up writing again in January 2024. After transitioning his practice to estate administration and management.

Paul’s intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.

You are encouraged to contact Paul directly at [email protected] with legal questions and issues you would like him to write about.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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