In probate, fully executed does not mean written in stone

If we all lived in a Dickens novel, a funeral would be followed by a somber meeting of the deceased's family members. A distinguished lawyer would be behind an enormous desk in a book-lined room, and the heirs -- or likely heirs -- would be seated across from him.

They would be gathering for the Reading of the Will. The lawyer would explain that the belovedgrande dame had made a will years ago, the very document they were all familiar with. "But," he would say, holding up a sheaf of paper covered with exquisite handwriting, "there is a codicil, made just a few days before her death, that alters these bequests in some significant ways."

The heirs would gasp, one would say something about Granny being so ill -- how could she have had the strength? A nephew would slip quietly from the room.

In some ways, it is a pity that things have changed so much. There was something about those formal gatherings that lent an air of mystery and solemnity to the disposition of someone's property. Still, it is hard to deny that technology, particularly word processing programs, has made the whole process of making a will and amending it a lot more efficient.

You can amend your will. A testator can amend his will by executing a codicil. To be valid, a codicil must be in writing, signed and witnessed -- just as a will must be. Please note: The witnesses need not be the same people who served as witnesses to the will.

A codicil is appropriate when the testator wants to add to or to modify an existing will. For example, you leave everything to your spouse in your will, but you decide to leave your vacation home to your oldest child. Your codicil would note the change and confirm that everything else in the will still holds.

You can supplement your will. Another approach requires a slight change to the original will. A will can take care of major items, especially the appointment of a personal representative, and attach something called a "separate writing" to detail the disposition of some personal property. The will must include a reference to the separate writing, though, or the writing will not be valid.

We'll explain more in our next post.

Source: Michigan Pleading and Practice (2d ed.), Part V, Chap. 99: Probate/Wills in General, August 2015, via WestlawNext

Categories: Wills