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November 1, 2010

From time to time, our attorneys are asked to review wills of recently-deceased individuals which are either marked-up, torn, manually changed or even a copy because the original cannot be located. Often the results of these circumstances do not follow the wishes of the testator.

A nephew asked us to review his recently-departed aunt’s will, in which he was initially excluded, but upon which she had later manually, in ink, inserted a provision for him. The aunt also manually reduced the legacies of others named in the will in order to provide the funds for the nephew’s inheritance. The handwritten changes were even initialed by the testator, but not witnessed by 2 witnesses. The nephew was disappointed to learn that his aunt’s markings were in vain, and not effective to either alter or revoke the will.

A will may not be changed unless the changes are signed by the testator and attested by 2 witnesses, the same formalities required for the initial execution of a valid will, or unless a separate modifying document called a codicil is executed with those same formalities. Otherwise, attempts to change a will on its face, as related above, are of no effect, unless the markings are so severe that they indicate an intent on the part of the testator to revoke the will, in which case the will is revoked and is no longer effective. Care must be taken to protect wills from ineffective attempts at changing them, or worse, from damage resulting in unintended revocation. Of course, all testators have the right, at any time, to change their mind and revoke their executed will by “burning, cancelling, tearing or obliterating” it with the intent to revoke, or by executing a later will or other document which recites that the prior will is revoked.

Wills must be kept in a safe and secure location to guard against misplacement by the testator or theft and destruction by parties who are motivated to prevent the will’s probate. If a will is last known to be in the possession of a decedent and cannot be found after the testator’s death, a presumption arises that the will was revoked by the decedent prior to his or her death. The presumption can be overcome by other evidence, but is not easily done.

At Di Monte & Lizak, our estate planning attorneys counsel our clients to treat their wills with care, and to be sure to contact us with any questions prior to attempting to change them. In addition, we offer to provide storage in fireproof cabinets for our client’s original wills at no cost to assure that the wills will not be misplaced, diverted by others, or inadvertently damaged while in our clients’ homes. Our clients’ wishes are thus much more likely to be followed.