The famous socialite, Brooke Astor recently died in New York. There is controversy surrounding the distribution of her $130 million estate. Apparently, Mrs. Astor had a will devised and then had three subsequent codicils, within a short period of time afterwards. A codicil is an amendment, making either revocations, modifications or clarifications, to an existing will. It is typically a separate document that specifies the desired changes to the prior will. A codicil must be signed, dated, witnessed and notarized exactly the way a will is. In New York, the requirements for a valid will are simply 1) that the testator be competent 2) that it be in writing 3) that it is signed 4) it is dated and notarized and 5) there are at least two witnesses present. A will does not have to be filed in court, unless and until it is contested (challenged). A will, particularly the original, should be kept in a safe place like a safe deposit box while copies of the will should be kept somewhere accessible, like a drawer in the testator’s home.

Updating a Will

Once a will has been created, there are instances where it should be updated. In fact, your estate plan should be revised every few years or after the occurrence of major life events such as marriage, divorce, the birth of a child or adoption. Even if you haven’t experienced any of these events, your estate plan should be reviewed and maybe revised if there were changes in tax laws or changes in your financial situation.

Additions or changes in family size/composition is an obvious reason to revise a will. However, situations often overlooked are changes in one’s financial situation. If your current estate plan was made even a few years ago, your net worth may have changed enough that you will need to incorporate more estate tax planning into your estate plan. Also, tax laws are constantly changing, and some changes may necessitate updating your will.

In addition, you should reevaluate your wishes, from time to time, based in the fact that your position has changed about a variety of issues, such as in Mrs. Astor’s case. Mrs. Astor allegedly decided to change the portion of her estate bequeathed to her son because she admired his philanthropic and charitable interests. Initially she chose to leave most of her estate to various charities but then subequently decided to decrease the amount of the bequest so that she could give more of the estate to her son and his charitable trust.

New will or codicil to old will

However, the manner in which one updates and/or revises their will can create problems. If a will is probated, it could cause extensive delays in the distribution of the estate, exorbitant costs the parties and the estate and/0r result in defying or misconstruing the true wishes of the testator. Whether one chooses to simply re-drafting a new one or have codicils done can avoid these issues. While having codicils done may be easiest and most convenient in some situations, drafting a new will minimizes legal challenges to the validity and authenticity the will. A testator may have as many codicils as she or he wishes, in addition to the original will. This alone may create major confusion where there are conflicts within the “four corners” of the numerous documents. For instance, although codicils should explicitly state that a prior provision of the will is revoked, modified, etc. if it does not and a new provision in the codicil addresses the same property, then there may be an issue as to which document should prevail in regards to that particular property.

The preferred option is to draft a new will. In the past, it was much more convenient to have codicils drawn since wills were typed on typewriters, which required much more time and effort. Since that is no longer an issue, retyping a will is usually a matter of making revisions to a “soft” copy, saved on a computer disk or hard drive.

If one chooses to simply redo a will, there are still certain steps he or she should take to avoid challenges to whether there was “undue infuence” in having it redone. Some lawyers recommend that you destroy prior wills, if possible in front of your lawyers and the witnesses of your new will. Others do not recommend destroying prior wills, with the notion that prior wills are often very useful in avoiding arguments that there was undue influence. If there are a number of wills that have similar provisions, prior wills are often very good evidence.

Also, when you write a new will, be sure to include the date it’s signed and executed, and put in a sentence that states that “the new will revokes all previous wills”. Otherwise, the court is likely to rule that the new one only revokes the old where the two conflict, which could cause another set of problems. If you keep an unsigned copy of the old will with the new one, write on each page “revoked, superseded by will dated ….” This provides a record in case any questions arise.

Nonetheless, having a will in it of itself is an indication of one’s desire to prepare for the future of loved ones. Failing to take certain precautions once it is done, may negate all of the effort and consideration put into having the will done in the first place. Although an attorney is not necessary to have a will done, it is always advisable to consult with an attorney if there are questions or concerns.