If a will is valid, it is effective until it is changed, revoked, destroyed, or invalidated by the writing of a new will. Changes or additions to an otherwise acceptable will can be most easily accomplished by adding a codicil. A codicil is a document amending the original will, with equally binding effect. Therefore, a codicil must be executed using the same formality as the original will. Wills cannot be changed by simply crossing out existing language or adding new provisions, because those changes do not comply with the formal requirements of will execution.
Changes to an individual’s personal property may prompt a change to an existing will. Although many states allow a will to specify that personal property (property other than money and real estate) is to be distributed in accordance with instructions provided in a separate document, North Carolina is not one of those states. A document in existence at the time a will or codicil is executed may be incorporated by reference and have effect. But if the intent is to continuously update a “memorandum” or “letter” after the will is executed and have the updated document be of legal effect, it will not work in North Carolina. That being said, wills are often drafted that refer to a statement or a memorandum that is a list of personal property the decedent wishes for the executor to distribute in a certain manner (Grandma’s china to Sue, Grandpa’s shotgun to Ned). Many individuals do not wish to “clutter up” an already lengthy document (a tax planning will can easily run 30 or more pages) with relatively minor items that may change over time. Such lists and statements are useful as long as the client understands that the list might be morally persuasive to the Executor and Beneficiaries, but the list will have little authority beyond that. I suggest that if certain items are important enough and may be the subject of contention, list them in the will.
An outdated will may not achieve its original goals because its underlying assumptions have changed. Additionally, changes in probate and tax law may change the effectiveness of certain provisions. This is especially true as tax law changes accelerate. What may have been sound tax planning a few years ago could be disastrous now. If a will is based on outmoded circumstances, for example if a chosen devisee has died or has alienated the testator, the probate period may be extended as the court determines how to construe the old provisions. Wills should be reviewed at least every two years, as well as upon major life changes such as births, deaths, marriages or divorces, and major shifts in a testator’s property. Because state law governs wills, if a testator moves to another state, the will should be reviewed for compliance with the new state’s laws. If you have recently moved to North Carolina, please call us to make arrangements to review your estate planning documents.
As long as the testator is mentally competent, his or her will can be revoked entirely without replacement by a new document. A testator can revoke a will by intentionally destroying, obliterating, burning, or tearing the will. If the will was executed in multiple originals, or if additional copies exist, those should be treated in the same fashion. If undertaken, however, the testator would be wise to have the revocation witnessed and recorded to avoid future contentions that the will is still valid, but has been lost.
A word of caution: Revoking a will without preparation of a new will result in an intestacy if you die before preparing a new will. Serious problems can result from an Intestacy. Please see discussion at Intestacy: When You Die Without a Will – Why to Avoid It.
