Making Changes to a Will in Massachusetts

To the surprise of some (usually beneficiaries of a will), one’s will is freely revised at any time. Many occasions may prompt a revision to a will. The following discusses when and how a revision may be accomplished.

One who has executed a will should review the will periodically and particularly on the occasion of a significant life event (marriage, divorce, birth, death) or a significant change in wealth. The question then arises: what to do if this review suggests a change 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 will before two witnesses (and in Massachusetts, preferably before a notary public). Handwritten changes--if accomplished properly--nevertheless carry unnecessary risk: How would one looking at a will with handwritten changes--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)? Engaging in an exercise of comparing ink impressions or handwriting for the purpose of determining what was written when is very unsatisfying. (People have been known to successfully trace another’s signature by placing a known signature under a page and tracing the signature on the upper page.)

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

A codicil is a separate document that refers to a prior will (or a prior codicil) and describes 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 or codicils). After drafting a codicil, the now modified will should be reviewed carefully to be sure that other provisions of the will are not unintentionally affected by the codicil. A codicil should be kept with the will so the two do not become separated: if the two become separated it is possible that the will will be located but the codicil will not. A codicil is usually considered appropriate only for minor changes to a will, such as changing the personal representative.

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 unintentionally 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 and witnessed.

Suffice it to say, a will is one’s last sentiment and should be drafted and revised with care.

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