No Handwriting Please!

Most people understand the importance of seeking the counsel of a qualified attorney to draft their estate plans.  The law is complex and estate planning involves everybody they love and all the assets they own.  Furthermore, after death, family members might get into disagreements about the intent of the plan.  It is therefore definitely worthwhile to make sure the estate plan is drafted clearly and correctly, carefully navigating tax, legal, and practical pitfalls.  

Most estate plans are revocable, meaning that the testator can make changes to the plan at any time, provided that he or she is living and has mental capacity.  After investing a significant amount of time, expense, and effort into creating the estate plan, it might be tempting to simply write in “a simple change,” such as switching the designation of a trustee, altering the amount of a cash gift to a particular beneficiary, or even removing a beneficiary all together.  One might reason that while it was important to initially seek the counsel of an attorney in drafting the original estate plan, it is not worthwhile to invest additional time, expense, and effort to make a minor modification to the plan.  However, writing in a change – even if it appears to be simple and straightforward – can create a whole host of problems and litigation after death.

“Interlineations” is the legal term for handwritten notes or modifications to an existing estate plan.  The quickest way to a lawsuit over the interpretation of an estate plan is to make interlineations in a document.  

The first question to be explored would be whether or not the testator was actually the person who made the interlineations.  There are hundreds of examples of disgruntled beneficiaries who – after the death or incapacity of a testator – attempted to make changes to estate plans to better suit their wishes or expectations.  While the handwriting might look like that of the testator’s, it might not be clear whether that handwriting was forged or not.

Second, even if it is clear that the testator in fact made the interlineations, the next question will be whether or not the testator intended that the interlineations be legally binding.  Often, people will examine their existing estate plans and think about possible future changes, but never make the final decision to actually effect the proposed change.  The interlineations could simply be the notes of a brainstorming session but the requisite intent to actually make those notes legally binding might be absent.  If the testator did not take the notes into an estate planning attorney for review and final drafting, it is reasonable to doubt whether the testator intended for the proposed changes to be legally binding.

Third, an additional question will be whether the testator was under duress, menace, fraud, or undue influence when making the interlineations, or whether the testator was even of sound mind at all.  If a testator makes changes on his or her own, it is not clear what the circumstances were.  Was the testator alone when he or she made the interlineations?  Was the testator influenced by a mischievous third party?  However, if a testator met privately with an attorney, there is less chance that the testator was not acting of his or her own free will and volition as the circumstances of the execution of the modification are clear and controlled.  

In addition to the aforementioned uncertainties that interlineations often cause, meeting with a qualified attorney to make changes to an estate plan can ensure that the testator has covered all bases.  Often an estate plan includes many varied parts that work together.  The testator might recognize the need to change one part of the plan, but fail to identify other parts of the plan that are related, which can cause discrepancies or unintended consequences.  A qualified attorney can help identify all aspects of an estate plan that might be affected by the testator’s desired changes.  Furthermore, a qualified attorney can also suggest other changes of which the testator might not be aware.  

Although a testator might have a “simple change,” making that change without the guidance of a qualified attorney can turn a “simple” idea into a complex problem.  It is definitely worth the time, effort, and expense to seek the counsel of a qualified attorney when addressing changes to an estate plan.