The Will

As explained in Bulletin No 1, the will is the document which controls the destination after death of the assets owned by an individual, and which also appoints, usually other individuals (but occasionally a company) to positions of responsibility.

We foreshadowed that we would consider how even a simple will (the type that people are sometimes inclined to make for themselves – a home-made will) can be deficient and can be improved.

There is no doubt that home-made wills can be valid.  However, validity does not just mean proper compliance with formalities, such as the will being in writing, properly signed by the maker of the will and properly signed by 2 witnesses.  It also means that the will is effective.  It is generally in the area of effectiveness that home-made wills can have shortcomings.

The fundamental reason for these shortcomings is that a person who self-makes a will often fails to ask, and cater for the answers to, the “what if” questions.

Common “what if” questions are:

• If only a single executor is appointed, who will administer if that single executor dies or becomes incapable?
• Sometimes, successive executors are appointed.  The intention is that if the primary executor cannot act, a back-up executor or executors take over.  The circumstances in which the primary executor falls out of the picture and the back-up executor or executors come into the picture, must be expressed with adequate precision, so how will that be done?
• The same applies to gifts by the will.  If there is a primary beneficiary, but an intended substitute beneficiary or beneficiaries, how will the words which link the two alternatives be expressed with adequate precision?  This is particularly so if the disqualifying circumstance for the primary beneficiary is something other than (or more than) failing to outlive the will-maker.
• How are specific gifts to be expressed?  A gift of “my house” seems straight forward enough, but what if the house owned at death has been sold and another replaces it?  What if, when the house which is referred to in the will, is sold, the will-maker goes into a retirement village or care institute?  The “ownership arrangements” associated with a retirement village or a care institute are often such that the replacement interest in the retirement village or care institute does not legally qualify as a “house”.
• What if the specifically gifted item has entirely disappeared?  If the will-maker was asked this question whilst still alive, he or she might say that the recipient is to get nothing, or the recipient is to get another asset.  However, that second outcome will not apply if there are no words in the will answering this “what if” question.
• As a generalisation, home-made wills do best if they are simple, they do not try to cover substitute arrangements, and there are no material changes in relation to people or assets between when the will is made, and death.  That does not happen very often.

Can you change your will?

You can change your will (in the sense of taking something out with or without a replacement) as long as you still have the requisite testamentary capacity and you do it the right way.

The right way is to either make a completely new will, or a codicil.

A codicil is an addendum to the will – a separate piece of paper signed and witnessed in the same formal manner as the will was.  The will and codicil then together constitute a multi-document will.

However, codicils can be dangerous.  They operate by a form of verbal “keyhole surgery” upon the contents of the will.  There is scope for the language of the 2 documents to be misaligned or otherwise lack harmony.  Codicils should only be used for peripheral (not major structural) changes to the will.  Experienced lawyers often will only use them in urgent or exceptional circumstances.

The wrong way to change your will is to get the original document and write over it.  That will almost certainly convert what might be a straightforward document into a contentious one, which may need court intervention to determine and declare the true meaning.

Article by:

Gary Lanham
Special Counsel
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