Taxation & Estate Planning

How NOT To Amend Your Will

By Joel A. Schoenmeyer

Illinois requires certain formalities to be followed if you want to have your Will considered valid. This makes sense -- a Will is a very important document, and the state wants to make sure that you really meant to say what you said. That's why Illinois requires two witnesses (and has requirements about how the witnesses, and you, sign the Will).

I think people generally know that "Will = formalities," and that it's a good idea to see an attorney, if only to make sure everything has been done correctly. But sometimes people forget that the formalities need to be followed WHENEVER you do a Will, and even if you try to change your Will. To take a recent example (with some identifying facts changed):

Jane Smith signs a Will in 1988 -- the Will was prepped by an attorney, and signed in accordance with Illinois law

In 1993, Jane decides she wants to change the 1988 Will. But instead of visiting an attorney, she makes the changes on the actual Will. She crosses things out, and writes in additions and notations. She also signs each page at the bottom with the (1993) date, and signs the top of the first page of the Will (where she also states that "These changes are intended to amend my 1988 Will").

This is a problem, for a couple of reasons:

1. The 1993 changes are null and void, since they weren't made with any of the required execution formalities. (Note that, in cases, this may be unfair. We might know in our hearts that Jane Smith truly did intend to make these changes, but the law doesn't care. The Illinois legislature has decided to set a bright line rule, and it's hard to blame them for that.)

2. More importantly, the 1993 changes call into question whether the 1988 Will is valid. This is due to the fact that, under Illinois law, "[a] will may be revoked... by burning, cancelling, tearing or obliterating it...." Do the 1993 changes rise to this level? I don't know, but I do know that it's going to take a lot of time and money to find out. And the end result may be that Jane Smith has no valid Will at all.

One final note: Trusts don't require the same execution formalities as Wills. So it's likely that, if Jane Smith had done a Trust in 1988 and then tried to amend it in 1993, both the 1988 Trust and the 1993 changes would be considered valid. This is another advantage of a trust over a Will (or another disadvantage, if you are afraid of the possibility of fraud or forgery).

Full post as published by Death and Taxes Blog on May 10, 2010 (boomark / email).