The purpose of a will is to provide directions for finalizing an estate when someone passes away. Generally this entails directing what happens to a decedent’s property. However, there are other purposes such as providing for the guardianship of minor children or even pets. To make a valid will, Arizona Revised Statute § 14-2501 states that “a person who is eighteen years of age or older and of sound mind may make a will.” To make a will, a person must be able to demonstrate, at a minimum, that they understand what their property is, they can direct who should receive that property (these are the beneficiaries), and they must understand that by signing a will, they are giving specific instructions as to these requirements.
In Arizona a will may be changed whenever the person who made the will desires. The method to changing a will is by executing what’s known as a codicil. A codicil can be performed to make minor changes to the will. A will can also have more than one codicil. Generally speaking codicils are an easy and inexpensive way to make smaller changes, however, for larger or more thorough changes, it is sometimes easier to draft a new will. In drafting a new will, it is important to revoke any prior or existing wills. Arizona Revised Statute § 14-2507 provides the means to revoke a will. Generally, a will can be revoked in whole or in part by executing a subsequent will that revokes the previous will or part expressly or by inconsistency. Another way to revoke a will is by performing what is known as a revocatory act on the will. If the act is done with the intent to revoke the will. A revocatory act includes burning, tearing, canceling, obliterating or destroying the will or any part of it.
However, there are scenarios in which a will cannot be changed. Perhaps the most obvious is that a will cannot be changed if the person who made the will has already passed away. What may be less obvious is the issue of “sound mind” as set forth in the Arizona Statute. Sound mind is an issue of competency. In order to make a valid will, the person making the will must be aware and able to comprehend what their will states. Addressing the issue of competency is important to prevent someone taking advantage of whomever is making the will and to prevent situations where a will may be challenged by a beneficiary. Legal challenges to wills can be time consuming, costly and can take an emotional toll on those involved. Because of this, any changes to a will or any time a new will is created it is important to make sure it is done so validly.
While this article discusses some basic scenarios where a will can and cannot be changed, it is not intended to be exhaustive. There are many different scenarios and issues that may arise, especially with regards to competency as people become older. Because these issues can be complex, subtle and often times difficult to spot, it is best to speak with a knowledgeable attorney when making changes to a will or creating a new will. Platt & Westby has offices in Phoenix, Arrowhead, Litchfield Park, Scottsdale and Gilbert Arizona. If you are interested in changing a will, creating a will, or discussing what type of estate planning may be best for you and your family, contact our office by calling 602-277-4441 or www.plattwestby.com for a free consultation with one of our experienced attorneys.