The Legal Effect of Amending a Will

Amendments must follow requirements in order to be enforceable.

Church Finance Today

The Legal Effect of Amending a Will

Amendments must follow requirements in order to be enforceable.

Estate of Phillips v. Worldwide Church of God, 2002 WL 1447482 (Iowa App. 2002)

Background. Many church members have drafted wills that leave a portion of their estate to their church. But what happens when church members become disgruntled with their church and attempt to amend their will to delete a gift to their church? Are such amendments legally valid? That was the question in a recent case.

Facts. An elderly farmer (“Charles”) signed a will that left a portion of his estate to a church. The will complied in all respects with the law. Some time later, he wrote (by hand) the following words on the will, “Members split up the church and no longer the same so I leave the balance to [another charity].”

After Charles died, a dispute arose as to legal effect of the “amendment” to his will. The church argued that the amendment was invalid because it did not comply with the legal requirements for a will. A state law specifies that “all wills and codicils … to be valid must be in writing, signed by the testator … and witnessed.” Charles’ amendment was not signed, or witnessed. The charity mentioned by Charles in the amendment to his will claimed that a strict application of the requirements for a signature and witnesses denied Charles the “constitutional right” to dispose of property in accordance with his intent. A trial court rejected the charity’s arguments, and ruled that the amendment was void. The charity appealed.

The court’s ruling. A state appeals court ruled that the amendment to Charles’ will was invalid because it did not comply with the legal requirements of a signature and witnesses. It declined to ignore these requirements, as the charity urged, because “adopting such a view is a matter for the legislature. In this state, the devising and bequeathing of property by will is purely a creature of statute. Our statutes require formal execution and currently provide no avenue for excuse of noncompliance. The appellate courts do not have the authority to amend statutory provisions …. Nor are we generally empowered to rewrite a will. Accordingly, we can find no error in the trial court’s determination that Charles’ attempt to remove [the church] and substitute [another charity] was invalid.” The court also rejected the charity’s constitutional argument, noting that “the disposal of property by will is a statutory, rather than a constitutional, right.”

Relevance to church treasurers. This case demonstrates that attempts by church members to amend their wills (whether to add or remove their church as a beneficiary) may not be legally enforceable. Church members should be encouraged to have any will, or amendment to a will (often referred to as a “codicil”), drafted by an attorney.

This article first appeared in Church Treasurer Alert, September 2003.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

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