WILLS AND CODICILS…HOW TO PROPERLY CHANGE YOUR WILL TO AVOID A WILL CONTEST AND ESTATE DISPUTE
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Will Contest and Probate Litigation Law Firm
Those of us who have a will know how important it is to ensure that your wishes will be honored after your death and that you can take comfort in knowing that your loved ones will be properly cared for. Once your will is drafted and finalized, what happens if you change your mind with respect to beneficiaries named in your will? How simple or complicated is it to alter your will?
Periodically reviewing your will and making revisions as you deem necessary is critical to avoid litigation among your family and friends after your passing. If you decide to amend or change your will, you can either (1) create a new will document or (2) draft a codicil to your will.
A codicil is a written amendment to a person’s will, which must be dated, signed and witnessed just as a will would be, and must make some reference to the will it amends. A codicil can add to, subtract from or modify the terms of the original will. When the person dies, both the original will and the codicil are submitted for approval by the court (surrogate’s office to be precise), and forms the basis for administration of the estate and distribution of your belongings. Notes, memos or a handwritten change on the will document itself may not be sufficient. In that instance, you are subjecting your loved ones to costly litigation wherein a court would have to determine if a change to your will is enforceable and in accordance with your testamentary wishes.
If a will is non-compliant with the execution requirements (in writing, signed and witnessed), a court will have to determine if the document is legal. In this case the proponent of the document must prove and establish by clear and convincing evidence that the decedent intended the document or writing to constitute (1) the decedents will; (2) a partial or complete revocation of the will; (3) an addition or alteration of the will or (4) a partial or complete revival of the formerly revoked will or formerly revoked portion of the will.
Clear and convincing proof means that the evidence presented by a party during the trial is more highly probable to be true than not.
There are established court decisions on this issue. In the 1985 case of In the Matters of Marinus, the court held that a codicil must specifically or by clear implication refer to that will or be attached to it in order to effectuate a republication of the will. Other Appellate Division cases analyzed whether the proffered document was reviewed and assented to by the decedent at his/her final binding will. In light of the above, it is important to make your intentions clear. If not, you are certainly opening the door to future litigation where a court will have to interpret and make a determination as to your final intentions and wishes.
To discuss your Will and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.