19 May Should I get a new will or change an existing one?

Q. If you want to make a change to your will, are you better writing a new one or adding a codicil to the will? Can you do that in New Jersey?
— Planning ahead

A. We’re glad you’re asking rather than assume all is well.

If the original will is properly executed and the codicil is properly executed, there is no legal difference between a new will and a codicil to an old will.

However, codicils are often not properly executed, and that’s where the problem arises, said Nancy Heslin Reading, an estate planning attorney with Reading Law Firm in Newton.

Litigation often follows.

In the era of word processing, Reading said, there isn’t much reason to do a codicil.

“The easiest thing to do is go back to the attorney who drafted the original will,” she said. “He or she should be able to open a word document, tweak the language that needs to be changed, and produce a new will for the client’s signature instead of a codicil.”

But, Reading said, a diligent attorney will still need to re-read the entire will with the new language in mind to make sure that it does not create a conflict with other provisions of the existing will.

Also, she said, the attorney will need to re-read the original will in case there have been changes to the law since it was executed. In both instances, those matters have to be addressed before the new will is ready for the client’s signature, she said.

“I mention this because often clients think that it takes 10 minutes to change one paragraph, print it out and be ready for the client’s signature,” she said. “Any attorney who does that is inviting a malpractice suit.”

Where the original attorney is no longer in practice and the Word document not available, another attorney could draft a codicil to the existing will, Reading said.

“Getting them right can be tricky though because the entire existing will still needs to be reviewed to make sure that the new language in the codicil is not in conflict with any provision of the existing will,” she said. “Also the codicil needs to be crystal clear as to what language is being deleted from the original will.”

Because all of this takes time and time is money, most often it is easier to just start with a new will, Reading said.

So, to your question, there will be a smaller chance for error if you just get a new will.

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This story was originally published May 19, 2020.

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