Law Office of Richard M. Russell
197 Palmer Avenue
Falmouth, Massachusetts 02540

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Making Changes to a Will

One who has executed a will is advised to review the will periodically, such as every three to five years; on the occasion of significant life events, such as a birth, marriage, divorce, or death; or on the occasion of a significant change in wealth. But what should be done if this review suggests a change or changes to the will?

One might think simply to handwrite changes on the will, but ordinarily changes to a will must be made with the same formalities as the execution of the will in the first place, which means signing the document before two witnesses (and in Massachusetts, preferably before a notary public). But if handwritten changes are made before witnesses, how would one looking at a will--perhaps years after the changes--know which changes were made before witness and which may have been made at different times without the presence of witnesses (or even which may have been made by another person)?

The preferred approach to making changes to a will are by (one) a codicil to the will or (two) creating a new will.

A codicil is a separate document that refers to a prior will (or a prior codicil) and identifies changes to the prior will (or codicil). The rules that apply to wills apply equally to codicils, which means the codicil should be signed and witnessed (and dated to identify the order of wills and codicils). After drafting a codicil, the prior will should be reviewed carefully to make certain that other provisions of the will are not affected by the codicil (or to address such circumstances). A codicil should be kept with the will so the two do not become separated--risking that the will is located but the codicil is not. A codicil is usually considered appropriate for small changes to a will, such as changing the personal representative or updating a name that has changed.

Because using a codicil requires that two (or more) documents be read and interpreted as one expression of a deceased’s final wishes, codicils can create issues of interpretation. Thus, more significant changes to a will are more safely made by creating a new will. A new will avoids issues of interpretation and avoids the risk of overlooking affects that a codicil may have on provisions of a will other than those directly modified by a codicil. The new will should include a date and express that all prior wills and codicils are revoked, in addition to being signed before witnesses.