A codicil is the name for any document that amends, modifies, changes, or supplements an existing will. It operates in the same way as an amendment to a trust, despite going by a different name. A codicil can be something as simple as changing the executor of the estate, requesting particular property be distributed to different beneficiaries, adding a no-contest clause, or adding the names of children born after the original will was made. Like an underlying will, interested parties can contest a codicil to a will if specific legal requirements are not met, or if there was undue influence, fraud or incapacity involved in the codicil’s creation.
How do you challenge a codicil?
To challenge the validity of a codicil, you will need to file a “codicil contest” lawsuit in probate court in the county where the deceased lived. If the probate court determines that the codicil is invalid, the document will be disregarded, and the preceding will or codils will be considered the controlling documents.
It’s important to keep in mind that only interested parties such as an heir or beneficiary under a previous will can challenge a codicil. To initiate a codicil contest, you will need to file a formal written petition contesting the codicil and explaining why the codicil should be thrown out. You’ll need to be able to provide details that substantiate your claims, and you will also need to secure supporting evidence and line up witnesses who can testify to this evidence at trial if needed.
Once the petition is filed, the case will move to the investigation or discovery, stage. During this phase of the proceedings, each side seeks and secures evidence that supports their case, including exchanging documents and information with the other side.
Codicil contests are often resolved through mediation, which is a formal settlement negotiation process that usually is conducted by a retired probate judge. If a settlement cannot be reached through either mediation or informal negotiations, the case will go to trial for determination.
Does a codicil override a will?
Yes, a codicil overrides a will and any previous codicils to the extent the new codicil conflicts with those prior documents. In other words, a codicil only changes those particular provisions referenced in the codicil while leaving everything else the same. So, whether a codicil will completely override an entire will or codicil depends on the terms included in the codicil.
For example, if the codicil revokes the will entirely, then the terms included in the codicil will be the only provisions followed in probate. This would normally be done through a new will rather than a codicil, but we’ve seen everything. If the codicil only changes a few provisions of the will, such as who is named executor of the estate, then the court will follow every other term in the original will, as supplemented by the codicil, during the probate administration process.
What makes a codicil invalid?
As with a will, you cannot contest a codicil just because you don’t agree with the terms or think they are unfair. Rather, you must have specific grounds to challenge the codicil’s legal validity. Here are some of the most common reasons codicils are found invalid.
The Person Making the Codicil Did Not Have Testamentary Capacity
For a codicil to be effective, the person executing it must have “testamentary capacity” or be of “sound mind.” This means that they must have enough mental awareness to understand three basic ideas:
- That they are making a codicil
- The nature and extent of the assets they own, as affected by the codicil
- Who will receive these assets affected by the codicil
While this requirement is one of the lowest mental capacity standards that exists, people with severe dementia or mental illness may not have the necessary understanding to make a codicil.
Undue Influence, Forgery, or Fraud
Another common reason that a codicil may be invalid is undue influence. This occurs when a third party manipulates someone through extreme pressure, force, or threats to create the codicil or name them as a beneficiary or executor when they otherwise would not have done so. Forged codicils may also be contested, as well as codicils that were created through fraudulent means, such as telling someone the codicil was another, less important document.
Other Legal Requirements Were Not Met
In addition to the above, the person creating a codicil must adhere to certain legal formalities for the document to be valid. While the particular requirements vary between states, everyone who makes a codicil generally must meet the following requirements for the codicil to be legally enforceable:
- The person creating the codicil must be old enough to make a will according to their state’s law.
- The person creating the codicil must have testamentary intent, which means they must intend for the document to modify their will.
Additionally, although different in some states, the person creating a codicil typically must sign it in front of two or more witnesses, who must also sign the codicil. However, an exception to these witness and signature requirements exists for hand-written or “holographic” wills and “holographic” codicils.
Because challenging a codicil is a significant undertaking, it’s essential to partner with a skilled probate litigation lawyer who has experience litigating cases in probate court. While codicil contests can be complicated cases and take several years to resolve, an experienced codicil litigation attorney will be able to advise you about the most suitable approach for contesting the codicil, which will provide you with the best opportunity to quickly obtain a favorable outcome while spending less on your legal bills, which will allow you to move on with your life.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.