Founder
This is a common situation: Family members have a copy of a loved one’s Last Will and Testament that’s been edited with handwritten scratch outs and addendums. Is it legal? Will a probate court enforce it? The answer is that it depends on several factors.
It is important to emphasize that it is not recommended that anyone make handwritten notes on estate planning documents. Those notes can create a mess for the heirs down the road. The handwritten notes can cause the Last Will and Testament to be challenged in court and complicate the probate process.
To make a legally enforceable change, you have two options: 1) Replace the prior Last Will and Testament with an entirely new document, explicitly stating that all prior Last Will and Testaments are revoked, or 2) Add a codicil [aka Amendment] that makes clear which parts of the old Last Will and Testament are being changed and which parts remain unchanged.
What if someone has already gone ahead and made handwritten changes anyway, will the courts accept those changes?
Here are some instances:
Holographic Last Will and Testaments:
A holographic Last Will and Testament is a document that has been written in the decedent’s own hand and signed and dated. (No witness or notary required.) Some states will accept holographic Last Will and Testaments, to varying degrees. But even when the handwritten notes are accepted, The Last Will and Testament will not qualify for the informal or expedited probate process. Under the principles of a holographic Last Will and Testament, handwritten addendums may be judged valid but only if each individual edit is signed and dated by the drafter.
The issue of intent:
In interpreting handwritten changes, the courts need to determine whether those edits actually met the drafter’s intent. It is possible, for example, that someone may simply have been mulling or brainstorming possible changes but not really intending to actually make any changes?
Heir agreement:
When handwritten notes have been made, the best possible scenario is that all the interested parties agree that the handwritten notes match the decedent’s intent. If they collectively agree and sign a statement to that effect, the court may honor that agreement. The issue, of course, is when an interested party challenges the validity of any handwritten edits.
If you wish to modify your documents, speak to an attorney prior to doing so, to ensure your Last Will and Testament remains legally enforceable and matches your intent. An attorney can also help you review a deceased family member’s Last Will and Testament and evaluate any concerns you have over handwritten changes.