How Do You Change or Update a Will?

Detailed Explanation

Lives change, and a will written years ago may no longer say what someone wants. The fix is simple enough, but it has to be done properly. The main risk is trying to change a will informally and ending up with a document that doesn't mean what its writer thought it did. The details below use the rules in Australia, the UK and the US as examples; the exact law depends on where the person lives.

Why you can't just write on it

A will is valid because it was signed and witnessed in a particular way. Any change made afterwards has to meet the same standard. England and Wales set this out in section 21 of the Wills Act 1837: crossing out, writing between lines or other alterations after signing have no effect unless the will-maker and witnesses sign next to the change. Australian and US state laws take a similar approach. In practice, a handwritten change on a signed will is often ignored, and if it makes the original words unreadable, it can leave a gap that ends up being argued over at probate.

Option 1: a codicil

A codicil is a separate document that amends part of a will. It suits one small, clear change, such as:

• replacing an executor who has died or no longer wants to act
• changing or adding a single gift
• adding a guardian for a new child

It must identify the will it amends (usually by its date) and be signed and witnessed with the same formalities as a will. The witnesses don't have to be the same people who witnessed the original. The drawback is practical: the codicil has to stay with the will for good, and if it goes missing, the will is read without it.

Option 2: a new will

For larger changes, several changes at once, or a change in family circumstances, a new will is usually cleaner. The UK government's guidance recommends a new will for major changes, and many lawyers in Australia and the US give the same advice. The new will should say that it revokes all earlier wills and codicils. The old original is then destroyed, usually by tearing it up or burning it, so nobody can mistake it for the current one. Tell the executor and anyone who held a copy that it has been replaced.

A new will follows exactly the same steps as making one in the first place. How to make a will covers the requirements and typical costs.

Life events that can change a will automatically

Some events change a will's legal effect without anyone touching the document. The rules vary a lot:

• Marriage. In England and Wales and in Northern Ireland, marriage revokes an existing will unless the will shows it was made expecting that marriage. Most Australian states have a similar rule. Scotland's rules differ. Most US states don't revoke the will, but many give a spouse married after the will was made a share of the estate anyway. California is one example.
• Divorce. In England and Wales, Scotland and California, divorce or annulment means the former spouse is treated as if they had died, so gifts to them and their role as executor generally fall away unless the will says otherwise. Most Australian states have similar rules. Separation alone usually doesn't count.
• A beneficiary or executor dying first. Their gift may pass to someone else or fail, depending on the will's wording and local law.

Because the results are so different from place to place, anyone who has married, separated or divorced since making a will should treat that as a reason to review it, not assume the law has tidied it up.

Things a will change doesn't reach

Updating a will doesn't update pension, superannuation, retirement account or life insurance nominations, which usually sit outside the will. See what happens to a pension or retirement savings when someone dies. Jointly owned property held with a right of survivorship also passes outside the will. Check all of these whenever the will changes.

How it works where you are

• In Australia: how to update or change a will in Australia, covering codicils, new wills and how state Wills Acts treat alterations, marriage and divorce.

Things to Consider

• Review regularly, not only after a crisis. The UK government suggests reviewing a will every five years and after any major change in your life. That's reasonable advice anywhere.
• Common triggers: marriage, separation or divorce, a new child or grandchild, the death of an executor or beneficiary, buying or selling a home, starting a business, or moving to another state or country.
• A new will costs about the same as the first one. If the choice is between a second codicil and a fresh will, the fresh will is usually worth it.
• Complexity is a reason for advice. If the change involves a blended family, a business, overseas property, or someone likely to challenge the will, a solicitor or lawyer is worth involving.
• Capacity still matters. A person must have legal capacity when they change their will, just as when they made it. Late-life changes are the ones most often challenged.

Common Mistakes

• Writing changes on the signed will. This is the most common error, and it usually doesn't work.
• Piling up codicils. Each extra codicil adds to the chance that one is lost or contradicts another. After one or two, a new will is usually better.
• Keeping the old will. An old original left in a drawer can cause confusion or disputes if it's found. Destroy it once the new will is signed and witnessed.
• Forgetting the nominations. A new will that leaves everything to a new partner won't change a pension form that still names a former one.
• Assuming marriage or divorce sorted it out. The automatic rules differ between countries and states and may not do what the person would have wanted.
• Not telling anyone. An updated will only helps if the executor knows it exists and where it's kept.