There are many circumstances in which you may wish or need to update your Will. However, drafting an entirely new Will is not always necessary. In this post, we look at the different circumstances where you may need to redraft your Will or add a supplementary document to amend your Will, known as a ‘codicil’.
When you need to make small changes to your Will, we would typically advise using a codicil. Codicils can be used for a wide variety of changes, including to increase the amount of a cash gift you wish to leave, to add beneficiaries, or to change a guardian or executor who is named in the Will.
For a codicil to be valid, it must be signed by the testator and witnessed in the same manner as the original Will. You can add as many codicils to a Will as you wish, although we would caution against adding too many as this may confuse matters on your death.
It is important to consider the nature of the change you are wanting to make. Whereas when you make a new Will the old Will is destroyed, a codicil is read alongside the original Will. Accordingly, it is obvious to your executors and beneficiaries that you changed your mind from what you had intended originally. This might result in a difficult situation where, for example, you decide to significantly reduce a cash legacy to a beneficiary or change to whom you wish to bequest a valuable family heirloom. If you wish to make a change to your Will without retaining evidence of your previous testamentary intention, or if you need to make a more significant change to your Will (such as in situations where a residuary beneficiary has died or if you have married), or if you have already altered your Will using a codicil several times before, we would recommend creating a new Will.
A new Will starts by stating that all previous Wills and codicils are revoked and that all old testamentary documents should be destroyed. The statement of revocation means that the old Will, together with any codicils, are no longer valid and have been superseded - even if copies are subsequently found.
Unlike in other parts of the UK, in Scotland when you get married or enter a civil partnership, your Will is not revoked. You may, however, wish to create a new Will to make your spouse or partner a beneficiary. Similarly, getting divorced or dissolving a civil partnership does not, on the face of it, affect your Will. However, if you left assets in your Will to your spouse or civil partner and you subsequently divorce or dissolve the partnership, that part of your Will does not take effect as recent legislation treats the surviving and divorced spouse or partner as though he or she had predeceased the testator.
It is common today for people to have more complicated family setups, with many people entering a second or third marriage. However, this can sometimes make inheritance and succession planning complex.
Many people are close to their stepchildren and would like them to inherit from their estate. If this is the case, it is important to create a Will that clearly sets out that they should inherit from your estate, as stepchildren do not automatically inherit the way “biological” children do.
On the other hand, it is essential to be aware of issues that may arise if you do not wish your stepchildren to inherit, or if you remarry and die before your spouse. When your estate passes to your spouse on your death, this will become part of their estate when they die. Possible scenarios are that your spouse leaves everything to his or her children, your stepchildren, thereby cutting your own children out of the inheritance. It is, therefore, crucial to draft your Will in no uncertain terms and to discuss your wishes in detail with an experienced solicitor.
You may wish to change the named executors in your Will for several reasons. Perhaps they have lost capacity, moved to a different country, or are unable or unwilling to act for another reason The easiest way to change an executor named in your Will is by using a codicil.
If you have any questions about the issues covered here, or if you would like to discuss your Will or any Estate Planning, Power of Attorney or Trusts matter with our lawyers, please call us on 0131 341 3741 or fill in our contact form.
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