Can you change your Will on your own? Should you?

Since the purpose of a Will is to document your wishes for who should be the executor and who should receive your solely-owned assets after you die, it should be a fairly straightforward matter to change that document if you later change your mind, right?  Yes, and no. 

Like many types of legal documents, in order to be properly executed a Will must adhere to a number of strict formalities.  In Connecticut, those formalities include: it must be in writing, signed by the person executing the Will (termed the “testator”) who must be over the age of 18 and of sound mind and body, and the execution must be witnessed by at least two witnesses who each sign in the presence of the testator.  Furthermore, only an original signed Will can be admitted to probate in Connecticut.  A mere photocopy of what the original Will looked like is generally inadmissible.  So to go back to our question, a testator is of course free to update their Will as often as they want to so long as all of those formalities are adhered to.

However, sometimes people try to handwrite changes to their Will themselves under the erroneous impression that their handwritten changes will be effective.  In some areas of the law, the “do it yourself” approach can work without lawyers getting involved.  For example, handwritten changes to a contract can effectively change the terms of the agreement provided all parties to the agreement initial and/or otherwise acknowledge that they accept the modifications.  But that approach is completely inapplicable to the realm of probate law as a recent Minnesota court case illustrates.  See Appeal of Miles, 68 Conn. 237 (1896).  See also, Johnson v. Johnson, 21 Conn. Supp. 126 (1958).

Esther Sullivan validly executed a Will on January 19, 2006 (“2006 Will”).  That Will provided that 50% of her property would pass to a former employee named Tara Jean Johnson with the other 50% to Esther’s grandson, Joseph VanHale.  Then apparently Ms. Sullivan changed her mind.  In 2008, she made a photocopy of the 2006 Will and went to work trying to change the terms herself (“2008 Will”).  She added her initials next to each change, included her signature and date at the bottom of each page, and prefaced it all at the top of the first page with an explicit statement declaring that the 2006 was void, to be replaced with her new 2008 version.  The main change was to remove Ms. Johnson from the distributions and provide that all of her property would pass to Mr. VanHale.  Perhaps at some point Ms. Sullivan lost confidence that her 2008 efforts would be respected because in 2010 she downloaded a Will template of some sort where she filled in by hand all of the pertinent provisions of her 2008 Will (“2010 Will”).

After Ms. Sullivan died in 2013, the inevitable dispute ensued in probate court between Mr. VanHale, who would receive all of the decedent’s assets if either the 2010 Will or the 2008 Will governed, and Ms. Johnson, who would receive half of the assets if the 2006 Will was valid.  The Court made short work of VanHale’s arguments.  Neither the 2008 Will nor the 2010 Will was properly executed because neither Will was witnessed by two witnesses in the presence of Ms. Sullivan.  Therefore, neither document amounted to a valid Will.   Furthermore, just as formalities must be obeyed in order for a Will to be valid, so too must formalities be obeyed in order to revoke a Will.  The Court was forced to disregard Ms. Sullivan’s handwritten statement indicating that she wanted to revoke the 2006 Will.  So ultimately of the three possible Wills, only the original 2006 Will was properly executed and was never properly revoked.  Therefore, the 2006 Will was admitted and its terms governed the settlement of Ms. Sullivan’s Estate.

In our practice here in Connecticut, we have unfortunately had the opportunity to settle the estate where the descendant tried to do something similar to what Ms. Sullivan attempted in Minnesota.  After having a will drafted in 2013, in 2014 he apparently decided to change the monetary amounts of several bequests he was making under his 2013 Will.  For reasons that are still unclear, (it has been suggested he got “advice” form a professional who was not an attorney, he crossed out the monetary amounts stated in the 2013 Will and initialed next to the revised amounts.  He then drafted a separate statement that referenced the two modified Sections of the Will and tried to affirm what he did.  That separate affirmation document was signed and notarized, but not witnessed. 

Needless to say, the changes are not effective and were entirely disregarded by the Probate Court.  However, it delayed the appointment of the executor for nearly 6 months.  That is entirely due to the lengthy delays while the Court sorts out the issues of the decedent’s failed attempts to modify his Will and affirm his changes.  We are sure the decedent would not have wanted that outcome if he knew that would be the results of his efforts.

Please call us at 860-769-6938 if you have any questions about the issues presented above or if you care to discuss any other planning issues with us.

 

 

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