Creating a valid Will is an important part of effective estate planning. When a person signs a Will, it speaks to their frame of mind and intentions at that moment. However, what a person wants today may not necessarily be what they want in the future.
Over time, a person could have additional children, get a divorce, obtain new property, or start a business. As a result, it may be necessary for people to amend their Wills or create new ones altogether. In these situations, it is essential to follow the legal processes of changing or amending an existing Will. A dedicated lawyer can help you change your Will after it is finalized and ensure that it will have full effect in court.
Under North Carolina law, a Will retains legal authority until the testator passes away. However, the testator can still change their Will up until the moment of their death. The law is flexible in allowing a testator who is of sound mind to alter a Will, destroy it, or create an entirely new one.
State law describes how a person can do this. Importantly, only the testator has the power to change or destroy a Will. Altering a Will without the permission of the testator is illegal. To change a Will, the testator must clearly indicate this intent.
Under North Carolina General Statutes § 31-5.1, there are two main ways to make a Will invalid. The first is to destroy the current Will. The testator must do this personally or may direct another party to do this in their presence. The statute suggests the following actions to achieve this:
The second way to alter a Will is to create a new version. The creation of a Will with a later date invalidates the older version. In addition, a party may alter the terms of the Will by creating an amendment, known as a codicil. This codicil can insert new language into a Will or change an existing provision. However, creating a codicil does not change any language in the Will that it does not directly reference. A knowledgeable attorney can provide more information about the legal processes behind changing or voiding a Will.
People commonly alter their Wills for a variety of life changes. One typical reason to make a change is the acquisition of new property. If a person makes their first Will at the age of 30 while living in an apartment but later buys a home, that home will not be in the current version of the Will. In this case, the person may wish to amend their Will by adding a codicil that outlines their wishes for the home.
Another common reason for alterations is changing personal relationships. Getting married, having children, or making new friends can all be reasons why a person may want to change the distributions of property in their Wills.
As far as the law is concerned, a person’s motivations for changing a Will are irrelevant. Except in rare cases involving allegations of undue influence or fraud, your reasons for altering a Will are your own. As long as you can clearly articulate the changes that you want to make, you should be able to amend your existing Will or create a new one, thus invalidating the old version. Consult an experienced lawyer to help you identify your desired changes and put them into effect.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.