Estate Planning - Changing A Will

“I am taking you out of the will,” or “I am going to disinherit Gregory and leave all my money to Steven,” are statements that seem far more like they belong in an Agatha Christie novel than in a serious discussion of estate planning.

Although the world is not filled with conniving relations who maneuver endlessly to gain the favor of a truly despicable older family matron or patron who uses their wealth to control them all until it culminates in murder most foul, this model is instructive regarding how changing a will can cause hard feelings between family members and create legal difficulties. The chief legal difficulty created by changing a will is that sometimes the two wills look like sequels to a movie and are literally called (Will I) and (Will II).

When this happens there will be, just as in the Agatha Christie mysteries, a group of relatives and friends who are favored by the first will (Will I) and not by the second (Will II). These relatives realize that if they can challenge and get rid of Will II, Will I will take its place, and they set out to get rid of Will II after the deceased is gone and can not take further action. Of course there are also the relations or friends that are favored by the revised will (Will II) and fight to keep it valid in the eyes of the law. There are many ways to attempt to invalidate a will that can be the subject of another article. The point of this article is to make it clear that changing a will by substituting it with another will drafted later in time is an exercise fraught with peril.

A better way to go is to expressly change from one will to the other or to expressly repudiate the first will. An express change is a change in writing. For example, if you want to get rid of the first will write that, “I hereby repudiate the first will with this writing and all of its provisions hereby are to be considered void.” It is difficult to get around the fact that you intend to get rid of the first will entirely if you fail to make such a claim in writing. Once that is settled, then you can begin the second will by stating again that you made another will before and that it is entirely void and does not in any way reflect your desires with respect to your property. And finally, include in the second will that it and it alone are a reflection of what you want when you are gone.

Another good way to go is not to let anyone, other than your attorney, know you are making a will or replacing an old will with a new one. People cannot fight over what they have no idea exists or has existed. This is a good way to keep the elements of an Agatha Christie novel regarding wills out of your life and the lives of your heirs. The fictional tyrant who rules the family with their notions of inheritance or disinheritance is the kind of person who has people fighting over their will because they are always blabbing about it. With wills it is best to adopt the policy that loose lips sink ships when it comes to your relatives fighting over what you meant after you are gone. This is not what anyone wants for their families and, with a little discretion and a lot of planning, it is easily avoided.