I have recently had quite a few estate planning documents come through my office that quite frankly are a mess. I have had so many problems to sort out lately that it deserves to be the topic of my article this month.

My advice is simple – original executed legal documents should never be amended without seeking legal advice. Put that pen away no matter how tempting it is to make that “simple change” and make an appointment with your solicitor instead. Don’t cross out a misspelled name and re-write it correctly, don’t change the address, don’t try to add any additional beneficiaries by writing a name in the margin of a will and don’t under any circumstances remove the staple from an original will!!! This is not a ploy for solicitors to charge more to update documents, you need someone with legal knowledge to ensure the amendment is valid. Changes to original wills are particularly hard to deal with as the only person who can provide an explanation for the amendment is often deceased.

As part of the application for a grant of probate in the NSW Supreme Court, the executor is required to provide an affidavit explaining any marks on a will, and confirm that no pages have been attached/removed. An executor trying to explain a second set of staple holes on a will is a nightmare, even if the original staple was only removed to run the document through the photocopier, as the court wants confirmation no pages are missing. In cases like this, I have had to locate the original witnesses to confirm the will was stapled when it was signed by the willmaker, and follow the movements of the storage of the will, over many years in some cases, to try to provide a reasonable explanation for the staple removal. Does your executor know every movement of your will since it was signed? Probably not.

Handwritten amendments made after the will was signed are just as problematic. An executor may be asked to explain when the amendment made, under what circumstances, and whether the willmaker had capacity at the time the amendment was made. How can the court be sure that the willmaker is the one that actually made the changes, or that they were made voluntarily?  A codicil to a will, prepared and witnessed by a solicitor, with file notes explaining why the changes to the will were needed, confirming that the willmaker appeared to have capacity to make those changes, is a lot less likely to be challenged than some unsigned, undated, handwritten amendments.

If you want your document to be legally binding, don’t try to make changes to any original legal document yourself. It is far cheaper to get legal advice about amending documents than the costs incurred sorting out problems with challenges to the validity of the document or any amendment later.