Making changes to your will might seem straightforward, but DIY alterations can turn a simple update into a legal nightmare for your loved ones. Whether you’re correcting a spelling mistake or updating beneficiaries, understanding the legal requirements for will alterations in NSW could save your estate thousands in legal fees and months of delays.

Why DIY Will Changes Create Problems

If you have made a will, or you are an executor or beneficiary, you should never alter the will yourself after it has been signed without legal advice. This includes everything from correcting spelling mistakes by hand, adding or changing clauses by hand, removing pages, damaging the will including creases or tears, or even something as simple as removing a staple.

A will is a legal document that sets out your wishes regarding the distribution of your assets after death. There are formal requirements for the execution and alteration of wills set out in the Succession Act 2006 (NSW). If these requirements aren’t complied with, the executor or administrator of a deceased person’s estate can run into significant problems when it comes time to obtaining a Grant of Representation (probate).

The Legal Requirements for Altering a Will in NSW

What Section 14 of the Succession Act Says

Section 14 of the Succession Act 2006 (NSW) says that a will may only be altered after it has already been signed if the alteration is made by or at the direction of the will maker in the presence of the witnesses who witnessed the will maker execute the will. The will maker and the two witnesses then need to place their signatures in the margin or on a part of the will beside, near or otherwise relating to the alteration.

If alterations, such as hand amendments, are not done in accordance with Section 14, the alterations risk the will being deemed not validly executed, even for something as simple as fixing a spelling mistake.

The Costly Consequences of Non-Compliance

The consequence of improper alterations is that to get a Grant of Representation (probate), your executor or administrator will need to apply to the Supreme Court of NSW to dispense with the formal requirements of the Act (known as a “Section 8” application).

To consider this application, the Court will require:

• Affidavits (written statements) from relevant witnesses explaining the circumstances in which the alterations were made
• Evidence of how and when the will was executed by the will maker
• Proof that the will maker intended for the alterations to officially form part of their will

This is particularly problematic when a will-maker makes handwritten changes to their will with no witnesses, as there is no one to provide the evidence required under Section 8 of the Act. This often means that the Court will probably reject the changes and could even reject the will entirely.

Common Mistakes to Avoid

There are some common ways that people amend or alter wills that can lead to these types of problems. Here’s what not to do:

Don’t make hand amendments to a will without the guidance and supervision of a lawyer. This applies even if the will is your own will. Any change, big or small, can cause problems.

Don’t assume that handwritten or typed notes or amendments in a separate document (known as a “codicil”) will legally change your will. If not executed properly, the Court may reject the note or amendment, resulting in your wishes not being followed.

Don’t make physical alterations, such as removing staples, attaching additional pages, removing pages, or damaging the will. This may raise questions about whether the will has been tampered with or revoked. The Court may require evidence to establish that the will has not been altered or replaced, which can delay the administration of the estate, or worse, result in the Court rejecting the will entirely.

The Right Way to Update Your Will

If you wish to make changes to your will, the proper course is to execute a new will or a formal codicil in accordance with the requirements of the Succession Act under the guidance and supervision of a lawyer.

Understanding Codicils

A codicil is a separate document that amends, rather than replaces, an existing will and must be executed with the same formalities as a will. While codicils can be useful for minor changes, in the age of computers and electronic records, it is often more practical to execute a new will rather than making a codicil, depending on the circumstances.

Why Professional Guidance Matters

Incorrectly amending a will almost always results in greater expense and complication for your executors and beneficiaries. More importantly, it can sometimes lead to your assets not passing to the beneficiaries you want them to. The cost of proper legal advice to update your will is minimal compared to the potential thousands in legal fees and court costs that improper alterations can create.

Protect Your Legacy with Proper Will Updates

Your will is one of the most important legal documents you’ll ever create. Don’t let DIY alterations put your final wishes at risk. If you need to update your will or have questions about estate planning in NSW, our experienced team at Complete Legal can guide you through the process properly and affordably. Book a consultation today to ensure your will reflects your current wishes and complies with all legal requirements. Contact us now or book online for a no-obligation chat about your estate planning needs.