Episode 85: What You Need to Know Before Editing Your Will
Episode 85
Host: Jill Mastroianni
What You Need to Know Before Editing Your Will
What happens if you simply cross out part of your Will, write “VOID” above it, and initial the change?
The answer is more complicated, and riskier, than most people realize.
In this episode, estate planning attorney Jill Mastroianni explains why making handwritten changes to your estate planning documents can create confusion, trigger litigation, and ultimately change how your assets are distributed. Through two real Tennessee court cases, you'll learn why “just one little edit” can have consequences that last for years and why creating a fresh document is always the better solution.
What You’ll Learn in This Episode
Why handwritten edits to estate planning documents can create expensive legal disputes.
The difference between modifying a healthcare advance directive and creating a new one.
Why clean, updated estate planning documents are easier for your loved ones, and medical providers, to rely on.
What happened in two Tennessee Court of Appeals cases involving handwritten changes to Wills.
How revoking one provision of a Will can unintentionally change who inherits your property.
What a residuary clause is and why it’s one of the most important provisions in a Will.
Why assets may pass through intestate succession even if you have a Will.
The risks of relying on DIY estate planning or making changes with a pen instead of updating your documents properly.
Resources & Links
Watch this episode on YouTube: https://youtu.be/DIie_NLlXto
Free Healthcare Advance Directives: https://www.caringinfo.org/planning/advance-directives/by-state/
Related Podcast Episodes
How to Write Your Own Will (and Why You Shouldn't): https://www.deathreadiness.com/podcast/50
What Every Parent Needs to Know When Their Child Turns 18: https://www.deathreadiness.com/podcast/episode-22-what-every-parent-needs-to-know-when-their-child-turns-18
Tennessee Cases Discussed
In re Estate of Dye, 565 S.W.2d 219
In re Estate of Warren, 3 S.W.3d 493
Need to Update Your Tennessee Estate Plan? Learn more about Jill's flat-fee Tennessee estate planning services: https://www.deathreadiness.com/estate-planning-solution
Connect with Jill:
· Website: DeathReadiness.com
· Email: jill@deathreadiness.com
· Learn more about Jill’s solutions
· Subscribe to the Death Readiness Dispatch!
· Ask a question for Tuesday Triage
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What if you just want to make one little change to your Will? Can you simply cross something out, write “VOID” above it, maybe put your initials next to it and call it a day? Courts wouldn’t accept something so informal, right?
Surprisingly, the answer is sometimes yes—and that’s exactly what makes it so dangerous. Today, I walk through two Tennessee court cases where a few handwritten markings led to years of litigation. I’ll explain why making “just one little change” to your estate planning documents can have consequences you never intended.
Welcome to The Death Readiness Podcast. This is not your dad’s estate planning podcast. I’m Jill Mastroianni — estate planning attorney, death readiness guide, and your translator for wills, trusts, probate, and the conversations most families avoid. If you’ve been wondering things like, ‘Can a trust protect what I leave to my children?’ ‘What happens if I give someone power of attorney over me?’ and ‘How can I help my parents while respecting their independence?’ You’re in the right place.
My daughter and I are happily settled in the Adirondacks with my dad for the summer. And we’ve already had our first minor household adventure. The bracket holding the shower head snapped off. So, unless you were holding it with one hand the entire time, the shower head would swing around like an angry garden hose.
Feeling perhaps a little more confident than qualified, I asked my dad if he had any glue. He left Gorilla Glue and a barbecue skewer, I assume for applying the glue, on the table outside the bathroom.
I stared at that little repair kit for an entire day. On day two, I finally read the instructions on the glue. It needed an hour or two to set, which meant I’d have to clamp the broken pieces together while it set. Except I didn’t have a clamp. And the broken piece was curved, so I wasn’t even sure how I would hold it in place.
So my daughter, my dad, and I held an impromptu meeting in the hallway outside the bathroom. After a few minutes, we reached the conclusion my dad had reached on day one: stop trying to glue the old one back together and just buy a new shower head. He picked up a new shower head at the Ace Hardware in town that afternoon and installed it the next morning.
The most important part of this fix-it adventure was recognizing that I’d crossed the line from a simple do-it-yourself fix into a project that needed a different solution. And that line exists in estate planning, too.
Maybe you paid a lot of money to have your estate planning documents prepared. Now you just want to make one tiny change. Surely you can cross something out, write something in the margin, and initial it... right?
Answering this question has been on my mind ever since I attended a conference in Michigan about a month ago.
The first speaker was talking about healthcare advance directives. She wasn’t an attorney, and I’m not knocking her for that. Healthcare advance directives are incredibly important. More people should be talking about them, and I’m glad she was. In fact, if you want to hear just how important they are, I’ll link in the show notes to an earlier episode where I shared the stories of several young women whose medical situations could have been very different if they had healthcare advance directives in place.
During the Q&A at this conference in Michigan, someone asked whether they could simply edit their healthcare advance directive on their own. The speaker answered yes—she said they could just initial the change. But that’s generally not correct.
In Tennessee, and in many other states, healthcare advance directives have to be signed by two qualified witnesses or it has to be notarized. If you change the document, those witness and notary requirements don’t simply disappear.
Now listen carefully, because this is important. I am NOT saying you should take your existing healthcare advance directive, make changes to it, gather two witnesses, have them initial the changes and call it a day. I’m saying the opposite. Healthcare advance directives are free. In fact, I’ll include a link in the show notes where you can download one for your state at no cost. Start fresh and complete a new document.
If you’re in the emergency room and unable to speak for yourself, is that really the moment you want doctors or the hospital’s legal department trying to figure out whether the handwritten edits on your healthcare advance directive are valid? Or would you rather hand them one clean document that they can immediately rely on so they can carry out your wishes without unnecessary legal questions or delays?
Just like my shower head, the better solution isn’t repairing the old one. It’s replacing it with a clean, working version. And healthcare advance directives aren’t the only documents where I see people trying to make handwritten repairs.
Do you remember John Edwards? Back in 2004, when I was at Dartmouth, I had the chance to hear him speak during the New Hampshire presidential primary. I called my mom afterward, excited to tell her about it. She got even more excited because she thought I meant John Edward—the psychic medium. Honestly, I would have been more excited to meet the psychic, too.
Years later, while I was in law school taking Wills and Trusts, Elizabeth Edwards, John’s wife, passed away. Our professor obtained a copy of her Will and walked us through it in class.
By the way, Wills are public record after someone dies. That's one reason many people choose revocable trusts instead. Trusts are not available to the public the way Wills are. Most people don’t realize that, and even fewer people ever go looking for someone else’s Will unless they’re famous.
Our professor pointed out something interesting in Ms. Edwards’ Will. There was a word that had been crossed out. Someone had handwritten a change, and there were initials next to it. His reaction was that it was sloppy work for an attorney representing someone like Elizabeth Edwards. But whether the client is famous or not, crossing things out and initialing estate planning documents creates unnecessary questions.
Who made the change? When was it made? Was it made before the document was signed or years afterward? Was it intended to revoke part of the document or merely correct a typo?
Those are exactly the kinds of questions we don’t want our families, or a probate court, trying to answer after we’re gone. When you’re dealing with estate planning documents, clean is always better than patched.
Just like my shower head, sometimes the right answer isn’t another patch; it’s a clean replacement. If you’re in Tennessee and your estate plan has sticky notes, handwritten edits, crossed-out names, or changes you’ve been meaning to make “someday,” this is your reminder to start fresh. I’d be happy to help. Visit deathreadiness.com/solutions to learn more about my Tennessee estate planning services. That’s deathreadiness.com/solutions. The link is in the show notes.
But what if we’re not talking about a healthcare advance directive anymore? What if we’re talking about your Will? Can you simply strike a line through a provision, write “VOID” above it, and call it a day?
The answer is... maybe. It might work or it might not, but it sure is going to get people fighting and spending a lot of money on lawyers to argue their side of the story. Let me show you what I mean with two Tennessee court cases involving exactly this situation.
In one case, a woman crossed out an entire provision of her handwritten Will and wrote the word "VOID" across it. In fact, this woman had four handwritten Wills. These are called holographic Wills and are allowed in Tennessee. They’re not allowed in every state and the requirements do vary so please do your homework before you try to write one. I will also link in the show notes to an entire episode I did on holographic wills, How to Write Your Own Will (and Why You Shouldn’t).
Anyway, this woman, her name was Gladys Dye, and she had written four holographic, or, handwritten Wills. The question the court was trying to answer was whether she effectively revoked a gift of real estate in one of these holographic Wills by drawing lines through the provision containing that gift of real estate.
The Tennessee Court of Appeals upheld the trial court’s ruling that Gladys had successfully revoked that part of her Will. But because she never replaced it with a new provision giving that real estate to someone else, she ended up dying without saying what happened to that particular real estate. And that real estate was distributed according to what is called “intestate succession,” meaning it went to the people the state of Tennessee said it went to if she hadn’t bothered to create a will at all.
So Gladys’ handwritten edits mattered quite a lot. I also want to note that the fighting didn’t stop at the trial court. Gladys’ family and friends endured the legal fees and fighting of bringing the dispute to the Tennessee Court of Appeals, even though that court’s decision ultimately affirmed the trial court’s ruling.
Then there’s another Tennessee case, the Estate of J.B. Warren, and I’ll include the full cite in the show notes for anyone who’s interested, along with the cite for Gladys’ case. It involved a father who had two children.
JB’s Will left his stocks, bonds, and investment accounts to his son. At some point after the Will was signed, someone underlined that entire paragraph, drew parentheses around it, wrote the word “VOID” above it, added the initials “J.B. Jr.,” and another word that was illegible.
After JB died, his two children argued in court about those markings. Before the court could decide what the markings meant, it first had to decide who made them.
The son who was otherwise the recipient of those stocks, bonds and investment accounts argued those markings weren’t made by their father. The daughter said they absolutely were their father’s.
The trial court heard testimony from a cousin who said she recognized the father’s handwriting and initials. And the trial court ruled that although the father did make the markings, the markings did not constitute an effective revocation of the bequest to the son. Like Gladys’ case, this case also ultimately went up to the Tennessee Court of Appeals.
The appellate court ultimately decided that the father had, in fact, revoked that gift to the son. So where did the stocks, bonds and investment accounts ultimately go? They were split equally between the son and the daughter.
Why? Because once the specific bequest, or specific gift of the stocks, bonds and investment accounts was revoked, those assets had to go somewhere. And, this Will had a residuary clause, meaning a clause that says that anything not specifically gifted elsewhere in the Will falls under this catch-all clause and is divided between the kids.
Maybe that’s what JB ultimately wanted. Maybe it’s not, but that’s what happened because JB didn’t leave anyone with a whole lot of direction to work with. The court cannot rewrite the Will to match what it thinks JB probably wanted. The court can only interpret the document that’s sitting in front of it.
Gladys Dye, the individual whose Wills I talked about earlier, didn’t have a residuary clause. That’s one thing that people leave out most of the time when they try to write their own Wills. So, that’s why the specific gift of the real estate, that the court ultimately determined she revoked, passed by intestate succession, or, as if she died without a Will at all.
And that’s exactly why I get nervous when people tell me they just want to “make one little change” to their estate planning documents and they’re going to do it on their own. Sometimes that little change is legally effective. Often it’s not. And it always creates confusion and legal costs.
Remember my shower head story? Could I have spent another day trying to glue that little broken piece back together? Absolutely. But even if I fixed it, every time I took shower after that I probably would have wondered whether this was going to be the day it came apart again. Instead, my dad spent a few minutes installing a new shower head, and now no one has to think about it anymore.
That’s what good estate planning should feel like. It should give your family confidence instead of questions. If you’ve been tempted to make “just one little change” to your estate plan with a pen, take this as your sign to put the pen down and get some professional guidance.
If you’re in Tennessee, I’d be happy to help you create, or update, an estate plan that your family can actually rely on. You can learn more about my flat-fee Tennessee estate planning services at deathreadiness.com/solutions. That’s deathreadiness.com/solutions. The link is in the show notes.
Good estate planning is about leaving behind certainty for the people you love.
Thanks for listening today.
This is Death Readiness, real, messy and yours to own. I’m Jill Mastroianni and I’m here to help you sort through it, especially when you don’t know where to start.
Hi, I’m April, Jill’s daughter. Thanks for listening to The Death Readiness Podcast. While my mom is an attorney, she’s not your attorney. The Death Readiness Podcast is for educational and entertainment purposes only. It does not provide legal advice. For legal guidance tailored to your unique situation, consult with a licensed attorney in your state. To learn more about the services my mom offers, visit DeathReadiness.com.
