Can I make handwritten changes to my Will?

A Will is an important legal document that may need to be changed over your lifetime.

There are many reasons why you may want to change your Will. You may notice a mistake or your circumstances may change. The temptation is to simply grab a pencil and make some handwritten changes to your Will. However, it is important to be aware of the legal consequences of this and how this may affect the validity of your Will.

What is a Will?

A Will is a legal document that specifies your intentions for your estate when you die. A Will contains who you would like your estate to go to (beneficiaries) and who you have chosen to carry out your wishes (executor) and administer distribution of your estate after you die.

What is required for a valid Will in Queensland?

Your Will is not valid if it is made when you are under the age of 18 years unless you are making your Will in contemplation of marriage or are married.

Your Will must be in writing, signed and dated by you in the presence of at least two witnesses (who are over the age of 18 years). The two witnesses must sign the Will in your presence, and they cannot benefit from your Will or be someone who may claim through the witness to benefit from your Will.

          Consider this example when determining who can witness your Will:

• You are married with two children;
• You are leaving your entire estate to your husband upon your death;
• You decide that should your husband pre-decease you, your surviving children will share your estate;
• Neither your husband nor your children can be a signatory witness to your Will as they are beneficiaries to the Will.

You must also have sufficient mental capacity (also called legal capacity) to make a Will. This is known as testamentary capacity.

Ideally, you should NOT write on an original Will to change it

Significant problems that can arise if you write on an original Will.

Handwritten changes to your original Will can:

1. create confusion over what the alterations mean and what the Will itself means.
2. raise questions over which terms are valid and which are not.

These problems can lead to the expense and emotional distress of litigation in the Courts.

It is better to make a new Will.

Important information if you choose to make handwritten changes to your Will

Although it is our advice that you should not make handwritten changes to an original Will, some people may choose to do so.

An alteration to a Will is not effective unless you comply with the same requirements as when you made your Will. This means that any alteration to your Will, including handwritten changes, must be signed, dated, and witnessed.

An alteration will not be valid if the words or the effect of the Will (that is, your intended wishes when writing your Will) are no longer clear because of the alteration.

Your signature and the signatures of your witnesses must be in the margin or on some other part of the Will near your handwritten changes. Alternatively, you can also make a memorandum referring to the alteration (which can be handwritten or typed), which must then be signed, dated, and witnessed in the same manner as the original Will.

Notably, any changes to the Will or any memorandum you write do not have to be witnessed by the same people as your original Will. Your witnesses just need to be over the age of 18 and not be a person who will benefit from your Will.

Does this mean handwritten changes to a Will are valid?

One requirement of a valid Will is that it be in writing. This can include any method of writing, for example, typed or handwritten, so long as it is clearly printed.

However, it is not recommended to make handwritten changes to your Will as it is common that it will be left unsigned or unwitnessed or not witnessed properly. Likewise, your handwritten changes may not be clear to the Court or your executor(s), or they may be illegible.

Further, given the importance of your Will, it is crucial that it is written and executed in a way that reduces any potential of a challenge to the Will. If your Will is prepared by an experienced estate planning lawyer, they will also ensure that there has been no undue influence or coercive behaviour impacting the Will-maker’s true wishes.

We strongly recommend that should you need to make changes to your Will, that you write a new Will, rather than handwrite your changes on your current Will. If you choose to make changes to your current Will, it is recommended that you advise your beneficiaries and executor(s) of the changes you have made and that you provide a copy of the Will to your executor(s).

What if handwritten changes to my Will are not valid?

It is not uncommon for people to make handwritten changes to their Will and then fail to have those changes properly executed (that is, signed by the Will-maker and witnesses).

The Court can choose to dispense with the execution requirements for a Will and any alteration or revocation of a Will. That is, the Court may choose to recognise the Will as valid (or other documents like a memorandum attached to the Will) even though the formal execution of the document has not occurred.

The Court can do this if it is satisfied that the person intended the document (or part of a document) to form the person’s Will, an alteration to the person’s Will, or a full or partial revocation of the person’s Will.

To make this decision, a Court will consider any evidence relating to the way the document (or part) was executed and any evidence of the person’s testamentary intentions (the wishes and intent of the Will-maker).

It should be noted, however, that going to Court can be expensive as well as emotionally taxing for your executor and beneficiaries. It is therefore best to take all steps to avoid this scenario.

When should I update my Will?

You should update your Will in any of the following circumstances, noting that this list is not exhaustive:

• You want to change your Will;
• You get married or enter a de facto relationship;
• You divorce, separate or end a de facto relationship;
• Children or grandchildren are born;
• If you or someone in your Will changes their name;
• If an executor dies or becomes unwilling or unsuitable to administer your estate;
• If a beneficiary in your Will dies;
• You buy or sell property of significant value, or the item of property is specifically mentioned in your Will;
• Your financial circumstances change significantly.

Get help from a Wills and estate planning lawyer

While you can make handwritten changes to your Will you should be careful to comply with all legal requirements. If you are needing to make extensive changes rather than minor changes, it is best that you create a new Will.

Hall Payne Lawyers offers an online Last Will and Testament tool that you can complete at home yourself. This is a cost-effective way to write your Will and is suitable if you need a simple Will. If you need a more complex Will, you should contact a member of our estate planning team.