Shock death in Succession and the legality of a hand-amended Will

Succession fans were left shocked in the TV show's third episode of season 4 when Logan Roy, patriarch and entertainment conglomerate founder, unexpectedly died. 

In the following episode, Logan's children and closest circle discover his Will. Logan's instructions state that he would be leaving the future of his media empire in the hands of his son Kendall Roy, along with other unique requests - like awarding his head of security a $3 million Rolex.

However, it's apparent that Logan has made handwritten amendments to his Will, leading to speculation about his true wishes. Logan's signed Will is understood to be four years old, likely prepared during Season 1 when he faced significant health problems. The edits appear to be more recent and in pencil. Logan has underlined (or crossed out, depending on which side you're on) Kendall's name as CEO and has written cousin Greg Hirsch's name with question marks.

Fan theories point to Kendall's betrayal at the end of Season 3 as a turning point for Logan, leading him to cross out Kendall's name as CEO, and that he may have thought Greg was a great contender to take on this role. 

Considering his unlimited resources and lawyers at his disposal, one would hope that Logan would have the time and knowledge to make formal amendments to his Will, especially when naming his successor.

Nevertheless, Kendall argues this was Logan's last Will and Testament and that his name was underlined for emphasis. At the same time, his sister Shiv believes it's just scribblings with no real meaning or intention behind them. Given Logan stored this Will in his home safe, we're left to assume that it would have been destroyed if he didn't want anyone to find it. 

As lawyers on the show frantically attempt to analyse the laissez-faire Will for the multi-billionaire, we asked one of our resident Wills and Estates lawyers, Gina Cerasiotis, to explain why you should refrain from hand-amending your Will.

What is the problem with a hand-amended Will? 

In Australia, handwritten amendments to a Will need to be made before signing a Will. They also need to be accompanied by the initials of the Will-maker, and two witnesses, with the same pen the Will was signed with. 

If handmade changes are done any other way, a Court may declare it an 'informal' or 'invalid' Will. The laws for when an informal Will may be accepted will differ in each state and territory. 

Related article: Signing and witnessing Wills: what are the rules?

When a Will is declared 'informal', it can cause a number of issues, such as: 

Uncertainty

An informal Will may leave the Court and family members unsure of the Willmaker's true wishes or intended meaning at the time of writing. In Succession, the underlining of Kendall's name can be interpreted as either an emphasis on him taking over as CEO or a crossing out of his name to show he is no longer suitable to be CEO. Two very different meanings. 

Hand-amendments or additional gifts are often left open to interpretation as they can lack the details needed to explain the intention. For example, a Willmaker may handwrite, "I give my car to my friend John". A lawyer will ask,"what car, how many cars, what if you own a new car in future, what if you own more than one car when you die, does the car have any finance owing, and if so, does John have to repay this, who is John, what is their last name, where do they live?"

There can also be uncertainty around the time the Will was amended. Witnesses may be asked if the changes were on the document before they signed it, or if the changes were added later - which may be very difficult to remember.

Testamentary capacity 

In Australia, for a Will to be valid, the Willmaker must have had sufficient mental ability (or 'testamentary capacity') at the time of making a Will. They need to be of sound mind to understand what a Will does, what assets it gives away, and who they should provide for.

If a person hand-amends their Will, there is no telling what their capacity was at the time, how close the amendment was to their death, or what their emotional state was like.

If there are concerns about the Willmaker's mental capacity at the time they made the Will, the Court may be asked to consider evidence from medical professionals, family members, witnesses and lawyers involved. 

A lawyer will ensure that evidence of capacity is taken at the time any changes are made to the Will, which can help if anyone were to challenge the Will. 

Undue influence 

When something is crossed out, gifts are added or new beneficiaries are introduced, legal challenges can arise. The validity of the changes may be called into question when parties disagree on the meaning of a hand-written ammendment, like Shiv and Kendall. It could be argued that the Willmaker was coerced or influenced by another person to make these changes that benefit them and provide a lesser amount for others.  

Fraud or forgery 

If there were no witnesses to the hand-amendments, and they are made using a pen different to what the Willmaker and witnesses signed with, how can it be guaranteed that the changes were actually made by the Willmaker?

A handwriting specialist will likely be engaged, increasing costs significantly. 

In these situations, there will also be probate issues as the Will may not be recognised by the probate court. There will be a large expense to the estate in finding evidence to prove or disprove any challenges or claims, and delays in the estate being paid to the beneficiaries (which could last for a number of years). 

What should I do if I need to amend my Will? 

If you need to edit your Will, a codicil (a supplementary legal document) can be prepared to make any ammendments. It allows the Willmaker to make changes to their Will without starting from scratch and without making the Will invalid. This document must be executed with the same formalities as a Will. 

However, it is important to note that multiple codicils can become confusing and difficult to interpret, especially if they are contradictory or not clearly written. 

In most cases, creating a new Will that incorporates all the necessary changes is simpler. This new Will can revoke all previous Wills that you have prepared. Your asset structure, capacity and understanding of the documents will be re-evaluated, leaving no room for a challenge on the basis you may not have had capacity. 

When should a person review or amend their Will? 

As a general rule, we recommend that you review your Will and estate plan every three years or in the event of any significant life changes, such as:

• starting or ending a relationship
• growing a family
• changes in assets
• becoming ill
• in the event of a loved one's passing

To best avoid any challenges or uncertainty about your wishes, we recommend you have your Will prepared or amended by an experienced wills and estates solicitor so that arguments between your surviving family (as we will likely see in the episodes to come on Succession) and misinterpretation of your intentions can be avoided.