Posts Tagged ‘codicils’

Can a Copy of a Missing Will be Admitted to Probate?

You’ve signed your will. We’ve given you the original in a fancy envelope, and a copy showing your signatures. What should you do with it?

For most people, most of the time, it is sufficient to just keep the original will in a convenient place at home. What to do with the copy? Put it in a different, but also safe, place. Include a note telling your family where to look for the original.

What happens if we can’t find your will after you die? It may not mean that your estate plan is frustrated, but consider what happened to estate planning documents signed by Irene Wilson (not her real name).

Irene was a librarian and an author of children’s books, and she lived in Maryland. She never married, and had no children. She did have a niece and a nephew — her closest relatives — but she was not particularly close to them.

After her retirement, Irene moved to rural Pennsylvania. By age 87 she was still living at home but unable to easily get up her stairs; she set up a first-floor bedroom for herself. She also had a cousin who lived upstairs and helped take care of her.

In 2007 Irene contacted a local Pennsylvania lawyer about updating her will. She named a long-time friend as executrix (what we in Arizona would call personal representative) and left most of her estate to her church back in Maryland. Three years later she updated the will with a new codicil, naming her live-in caretaker as execturix; at the same time she transferred her home to the church she attended in Pennsylvania, reserving a life estate for herself.

Both the original will and the original codicil were carefully placed in an unlocked metal box near her bedroom on the first floor; “conformed” copies of both were in a locked safe in an upstairs bedroom. The attorney who prepared both documents also kept a “conformed” copy.

Pause a moment for explanation: what is a “conformed” copy? In modern usage, it is a photocopy of the original, unsigned document, with a notation like “/s/” placed on the signature blocks. Sometimes a stamped representation of the signer’s name is placed on the signature block. In either case, it indicates that the original was signed — though the signature itself is not usually copied.

Six months after Irene signed her will and placed her conformed copies near her downstairs bedroom, her niece came for a visit. It did not go well. The niece told Irene that there were important family documents and heirlooms that she wanted to receive on Irene’s death. She also told Irene that she should move out of her house and into a nursing home. Irene was upset by the visit, and by the follow-up phone calls from her niece.

A few months after the niece’s visit, Irene’s lawyer called on her at home. She did not say anything about wanting to change or revoke her will, or about any changes in her plans.

Irene died a week after the lawyer’s home visit. When her caretaker went to the house to retrieve the original will, she found an empty envelope in the downstairs box, and all of the papers missing from the safe upstairs. Oddly, the original codicil and some other papers were still in the downstairs box; the copies of those documents were missing from the safe.

Let’s stop here for a moment for reflection. Did Irene have a valid will? Can the copy of her will from her lawyer’s file be admitted to probate?

Ready to proceed? Do you have your answer?

There is a presumption under Pennsylvania law (which governed Irene’s probate case, since she lived and died in that state) that when an original will was in the decedent’s possession before death but can’t be found. The presumption makes sense: it is that the decedent must have destroyed the original with the intent to revoke it. The same presumption, by the way, exists under Arizona law (and, probably, under the probate laws of most or all of the U.S. states).

The Pennsylvania probate court (it’s actually called orphan’s court, but no matter) ruled that the evidence suggested that Irene had not intended to revoke her will, and the lawyer’s conformed copy was admitted to probate. The next level of review, however, resulted in the opposite outcome: the Pennsylvania Superior court reversed, ruling that two witnesses would have had to testify that they actually saw Irene sign the original document. That meant the will was invalid, though the codicil (which was still intact in the metal box) would be effective. Irene’s caretaker would be in charge of her estate, but her niece and nephew would inherit most of her wealth.

Was that your prediction? If not, then you might take comfort in the next step. The Pennsylvania Supreme Court reversed the intermediate ruling, returning the outcome to the probate court’s finding: the copy of Irene’s will was, after all, admitted to probate. The Supreme Court found that the lawyer’s testimony about witnesses to the original will was sufficient — there was no need to produce the actual witnesses to testify about the signing. In re Estate of Wilner, July 24, 2016.

Would the same thing happen in Arizona? Yes, almost certainly. Given how easy it is to make photocopies, most lawyers today would have copied the will after signature rather than making conforming marks on a copy, but the outcome would not be different in most cases. The key is whether there is a legitimate explanation about why the original might be missing, more than whether specific technical requirements have been met.

So what should people do with their original wills? Put them in a safe place. Tell someone — the person named as personal representative, close family members, or someone — where the originals are located. Keep track of originals over the years (do you know where your original will is right now?). But what happened to Irene is unlikely to happen if you are leaving your entire estate to your children in equal shares (or to your only niece and nephew).

Can You Change Your Will By Writing On It?


So you have a will, and you want to make some changes. Can you just write in the new provisions? How about if you sign somewhere on the document?Can it be a copy of your will, or does it have to be on the original to be effective? Do you need witnesses?

The correct answer: don’t make changes that way. There are too many variables, too many interpretations, too many ways for those changes to just add cost to the probate of your estate while not effecting the result you intend. Talk to your lawyer, get changes made formally, and have a new will drawn up. Can it just be a codicil? Yes, but there is frankly almost no reason in this age of computerization to ever sign a codicil to your will — just sign a new will. One drafted by your lawyer.

Sometimes, though, time just gets away from you. If you want to make changes, you probably ought not wait until just before your 100th birthday. That’s probably the biggest mistake Jenny Travis (not her real name) made.

Ms. Travis had signed a will in 2002, and a codicil a few months later in 2003. In 2010 she had her caretaker call her lawyer, asking him to make a visit to review her estate plan.

The lawyer made a photocopy of Ms. Travis’ existing will and codicil, and went to her home to discuss them with her. During their meeting, he hand-wrote several changes in the margins of his copy of her existing will. As she described the changes, he scratched out two individuals’ names next to a bequest and wrote in two replacements. In another place he deleted a paragraph, and in another made modifications to the way a bequest would be handled. Another was changed from $10,000 to $42,000, again in the lawyer’s handwriting. Finally, the two charities who were scheduled to get the remainder of her estate in the 2010 will were crossed out and replaced with Ms. Travis’ brother.

At this point the lawyer had Ms. Travis sign her name by each of the changes, and he signed as a witness. Then he wrote a note to his secretary at the top: “Linda, do a codicil that changes” the affected sections of the 2002 will and 2003 codicil. He took the document back to his office with him, and a codicil was prepared. Unfortunately, though, Ms. Travis died six weeks after her lawyer’s visit, without ever having signed the new, formally prepared codicil.

Did those handwritten changes constitute a will or a codicil? Not according to the Pennsylvania probate office, which declined to admit the handwritten changes to probate (but did admit the 2002 will and 2003 codicil).

Ms. Travis’ lawyer appealed, and the Superior Court (the second-tier appellate court in Pennsylvania) viewed things differently. The appellate judges ruled that Ms. Travis’ changes might be a codicil to her will — and that the probate court should conduct a hearing to determine whether that was what she intended when she signed (and her lawyer witnessed) beside each change. One of the nine judges considering the case would have gone further — he would have ordered the handwritten notes admitted to probate without any further testimony. Still, it seems likely from the language of the opinion that the lawyer’s notes will ultimately be given effect — it will just have taken a trip to the appellate court and a delay of several years before the issue is resolved. In Re Estate of Tyler, November 13, 2013.

Assuming that Ms. Travis really did want to make the changes her lawyer wrote down, what might have been done differently to make sure her wishes were carried out? And would the same result be reached if Ms. Travis had lived and died in Arizona?

One obvious thing to consider would have been to make the changes earlier. By the time of her death Ms. Travis was 100 years old — if she had been thinking about making the changes for very long, she probably should have called her lawyer earlier. Perhaps, though, she had just recently made up her mind about the changes when she met with her lawyer.

Apparently Pennsylvania law permits changes to a will to be effective if written by someone else and signed by the person making the changes. It may not even have been necessary for her lawyer to sign as a witness (we don’t practice Pennsylvania law, so we might have gotten that wrong). The same is not true in Arizona — changes like those made by Ms. Travis’ lawyer would require her signature and two witnesses in Arizona. It’s not even completely clear that the changes would have been accepted then, since there does not seem to have been any indication in the written notes that the changes were intended to be a will or codicil, and they were made on a photocopy of her old will.

In Arizona it would have been better for the lawyer to write out a separate document describing what it was and the intended effect, and to have Ms. Travis sign it in front of two witnesses. Such a document would probably have been effective. Another alternative, since Arizona permits “holographic” wills, would have been for Ms. Travis to write out her changes in her own handwriting, and to sign that document (no witnesses would have been required) — though that creates plenty of opportunity for her to get the changes jumbled, or leave out portions or make mistakes. Presumably the lawyer, familiar with will drafting, would have had an easier time making the changes correctly.

Of course it would have been wonderful if the lawyer could have returned to Ms. Travis’ home with a beautifully typed new will (again, just forget codicils) the next day and had her sign in front of two witnesses. It is unclear why that did not happen — whether Ms. Travis was unable to discuss her wishes shortly after the initial visit, or the lawyer’s secretary Linda was out sick the next day, or what else might have intervened. The central lesson: if you want to make changes to your estate plan, get to it promptly, and talk with your lawyer right away.

Missing Will Presumed Revoked, But Codicil Partially Reinstates It

MAY 14, 2012 VOLUME 19 NUMBER 19
In Arizona (as in most other states) there is an important rule about wills: if the original document was in the possession of it’s signer, and it can not be found after the signer’s death, then there is a presumption that it was destroyed. Not only that, but the presumption is that the signer destroyed it, and that he intended to revoke his will by doing so. Arizona’s statute on missing wills is pretty clear. What is less clear is how to apply the statute in real cases with individualized facts.

The logic of the presumption is pretty clear. One can revoke one’s will by committing a “revocatory act” upon it, according to a different section of Arizona’s probate code. So if tearing up, or burning, your will is sufficient to revoke it, well, if it has gone missing the system is simply going to presume that that’s what you did.

Of course people lose their original wills all the time. Sometimes surviving relatives or friends know what became of the original. Sometimes it doesn’t make very much difference (if, for instance, the will simply leaves everything to family members in the same proportions they would receive if there had not been a will at all — or if there are no assets in the decedent’s name, everything having been transferred into a living trust, or placed in joint tenancy, or spent). Sometimes everyone can agree that the loss was accidental, and that a copy should be admitted to probate. Sometimes none of those things are true.

Take the case of Warren Alexander (not his real name). When he died, at age 94, his original will could not be found. What could be found was a copy of the will, a copy of three codicils he had signed over the years, and the original of his fourth codicil. The fourth codicil contained some changed language and, as is usually the case when lawyers draft codicils, added a line at the end that said he was otherwise republishing (readopting might be a more familiar term) his original will.

What does that mean? Does it depend on the sequence of events? Assuming that Warren actually destroyed his original will and intended to revoke it, would it make any difference whether that was before or after he signed the fourth codicil?

The Arizona probate court hearing the case decided that the codicil was valid (the original had been found, after all, and it was properly executed). Because it contained language incorporating at least some of the provisions of the original will, those provisions were still valid as well. The fourth codicil was admitted to probate.

Family members would inherit Warren’s estate if there had not been a valid will at all. One of them appealed the probate court’s ruling, but the Arizona Court of Appeals agreed with the probate judge’s decision. According to the appellate judges, the probate judge had not admitted a missing will to probate — he had admitted a codicil that incorporated some or most of the terms of that missing will. In fact, observed the Court of Appeals, the codicil really was a will; although we think of codicils as amending wills, they are themselves testamentary instruments with all the power and effect of a will. Estate of Andreson, May 4, 2012.

What does Warren’s probate tell the rest of us about what we should do? A few suggestions come to mind:

  1. Keep track of original documents. Some of them are not themselves important (though the rules may vary from state to state). The deed to your house, for instance — in Arizona, it is not important to keep that original, provided that it has been recorded. Your living trust is generally still valid even if the original can’t be found. But it would be good to keep all the original documents in one place.
  2. If you really do want to revoke your will, do it by signing a new will rather than tearing up your old one. And for goodness’ sake, talk to a professional. The small cost of involving a lawyer will be saved many times over by your heirs and devisees.
  3. Periodically review your documents, and go looking for originals. If you can’t find them, ask your lawyer to redo them and sign new originals.
  4. Rather than amending a will four times you probably want to consider just redoing the whole thing. That reduces the number of documents you have to keep track of, it reduces the likelihood of inadvertent errors, and it simplifies your estate planning. It also probably costs no more than successive codicils (lawyers don’t usually charge by the word, despite the jokes we have all heard).

Amending Your Will–Caution: Do Not Try This At Home

OK — you’ve signed your will and paid the big lawyer’s fee. Now you want to make a change. Do you know how to modify your will? Can you do it without incurring another fee? Shouldn’t it be easy to make the change?

All that might have been going through Donald Wolf’s mind when he made changes back in 2005. You see, he had written a clearly valid will in 1995. In it, he left half of his estate to a married couple who had been long-time friends. A quarter of his estate was to go to another friend, and the final quarter to a fund to assist AIDS patients. He named the wife of the married couple as his personal representative. Then he gave an unsigned copy of the will to the woman named as personal representative.

In 2005, when he was thinking about making a change, Mr. Wolf talked with the couple to whom he was leaving half of his estate. Then he took THEIR copy of his will, crossed out the bequest for AIDS patients and wrote that instead that quarter of his estate would be divided between two other friends. He dated and initialed the changes, but no one signed as witnesses. At some point — perhaps during that same meeting, but his friends could not clearly recall — he did the same thing on the signed original will, as well.

Was Mr. Wolf’s will amendment effective? We’ll give you a minute to think about it, and try to decide what you think. Wait — we’ll give you one more clue: the probate court decided that the attempt to amend his will was ineffective, and ordered that the AIDS fund was still a one-quarter beneficiary.

One of the two friends named in the hand-written amendment appealed the probate court’s decision, and the Arizona Court of Appeals reversed the finding. Arizona permits “holographic” wills and amendments; if the material provisions of a will are in the decedent’s handwriting, they do not need to be witnessed. The appellate court decided that Mr. Wolf’s amendment was a holograph, and that it should be given effect. Estate of Wolf, February 7, 2012.

Back to our original questions: assuming you want to change your will, does the Wolf case stand for the proposition that it is as easy as taking your original will out, scribbling the changes, initialing and dating (which Mr. Wolf did) and putting it back away? Emphatically, NO. Here are some reasons why you should NOT use Mr. Wolf’s method for changing your will:

  1. You might live in, or move to, a state where holographic wills are not permitted. Not every state in the U.S. allows holographic wills and codicils, and they are disfavored in other jurisdictions — even in English-speaking countries, where the idea was once embedded in English law. Even where they are permitted the rules vary. It is never a good idea to rely on a holographic will, codicil or amendment.
  2. Even if the handwritten notes are admitted as part of the will, the intent and meaning is usually subject to interpretation and confusion. Is it possible that Mr. Wolf was making notes about possible changes that he meant to discuss with his lawyer — but never got around to completing? Apparently not, but very slight differences in testimony can lead to significant differences in result.
  3. Holographic documents are much more likely to result in litigation — and in delay and additional cost.
  4. The cost of making changes in your will is usually surprising slight. Go ahead — ask the lawyer who prepared your will how much he or she will charge for making changes. You are likely to be surprised at the answer. Why would it be inexpensive? Because a significant part of the cost of preparing your estate plan comes from the time it takes to understand your assets, family situation, goals and intentions. Much of that has already been done, and so amending your will is likely to cost quite a bit less than the original cost of preparing the will. That is true even though most lawyers would rather simply write a new will than prepare an amendment or codicil.
  5. There is a side benefit to meeting with your lawyer to amend your will. Laws change, your situation changes, the world changes — and your lawyer can point out things you ought to be thinking about in addition to the changes you want to make. In fact, you should be visiting with your lawyer once every five years or so — more if your situation is more fluid, or your assets are significant — just to see if you need to update documents.

Court Distinguishes Between Undue Influence, Incapacity

DECEMBER 28 , 2009  VOLUME 16, NUMBER 66

Contrary to public perceptions, will contests are actually rare. In fact, few wills are written in such a way that anyone would benefit from a contest — most wills leave property to the same people who would inherit if there was no will. When there is a will contest, however, the two most common grounds are allegations of (1) lack of testamentary capacity, or (2) undue influence exerted by someone. A recent Texas case highlights the differences between those two allegations.

Evelyn Marie Reno died at age 81. She had been married twice, and left three children from her first marriage and one daughter from the second. The youngest child, Jan LeGrand, did not get along well with her half-siblings. Relationships between Ms. Reno and the three children from her first marriage were also strained — at least partially because two of them had initiated a guardianship proceeding (which was later dismissed) against their mother.

Ms. Reno spent the last year of her life in a nursing home. Ms. LeGrand visited her regularly, paid all her bills, and kept her location a secret from her half-siblings. At some point in the year before she died, Ms. Reno asked her daughter to help her prepare a new will disinheriting her other three children and leaving her entire estate to Ms. LeGrand.

The will was prepared (by Ms. LeGrand), and signed in Ms. Reno’s nursing home room. The witnesses were a hospice worker and chaplain, and the notary public was a nursing home employee. Ms. LeGrand was asked to leave the room while the three non-family members discussed the will and watched her sign it.

After Ms. Reno’s death the will was filed with the probate court by Ms. LeGrand. The three half-siblings proposed an earlier will, which left most of the estate to the four children equally.

The Probate Court ruled that Ms. Reno lacked testamentary capacity at the time the last will was signed, and that she was subjected to undue influence by her daughter. The earlier will (and a codicil) were instead admitted to probate.

The Texas Court of Appeals analyzed the findings of the Probate Court, and modified the basis for its findings — while not changing the result. The evidence, according to the appellate court, showed that Ms. Reno DID have testamentary capacity. Though she was often confused, the two witnesses and the notary agreed that the will was signed on a good day. Evidence of confusion and occasional disorientation on days before and after the will signing was not enough to overcome the testimony that she knew what she was signing, who her children were and what she intended to do at the time she signed the will.

The appeals judges agreed with the Probate Court, however, on the subject of undue influence. A key part of the evidence considered by the Court of Appeals: the fact that the will was actually prepared by Ms. LeGrand. As the Court wrote: “the fact that LeGrand personally prepared teh will without the intervention of an atotrney or other third party is significant.”

Also important to the court’s analysis: Ms. LeGrand had sole access to Ms. Reno for more than a year (during which time their mother’s whereabouts were not shared with the other three children). During that time, noted the Court of Appeals, Ms. Reno was completely dependent on Ms. LeGrand for bill-paying, care management and personal contact.

A more subtle distinction is drawn by the appellate judges with regard to Ms. Reno’s declining mental status. Though her condition at the moment of signing the will did not support the allegations of lack of testamentary capacity, her growing confusion and periodic mental weakness made her susceptible to undue influence.

Finally, the Court of Appeals notes that the will prepared by Ms. LeGrand for her mother was a complete shift from her prior wills. In each of those she made specific bequests to her four children and thirteen grandchildren, plus hospitals, her church and her pastor. The last will, however, left everything to one daughter — and this significant change in her dispositive plan was yet another indication of undue influence.

Though family members often confuse the concepts of testamentary capacity and undue influence, the legal analysis of the two different approaches to will contests is well-developed. It is also important to note that not every attempt to talk someone into making a new will is automatically subject to challenge. As the Reno court opined, in somewhat dry legalistic language: “One may request, importune, or entreat another to create a favorable dispositive instrument, but unless th eimportunities or entreaties are shown to be so excessive as to subver the will of the maker, they will not taint the validity of the instrument.”

The difference between “lack of testamentary capacity” and “undue influence” is legalistic, to be sure, but it is more than just academic. Interestingly, the Texas Court of Appeals noted that there is a difference in the burden of proof borne by the parties in the two different kinds of cases. In a case alleging lack of testamentary capacity the proponent of the will has the burden of proving that the testator understood what she was doing. In an allegation of undue influence, the challenger carries the burden of proof.

That means that each side in Ms. Reno’s case met their burden of proof. That is, Ms. LeGrand showed that her mother understood what she was doing, but the other three children demonstrated that Ms. LeGrand unduly influenced their mother. Estate of Reno, December 18, 2009.

Contract Not To Change Will Is Enforceable Against Estate


Any competent adult can sign a will disposing of his or her property—unless he or she has agreed not to do so. Though they may seldom be used, the law of most states permits individuals to enter into a contract not to change their wills (or, for that matter, to write new wills). In most cases such contracts may have to be almost as formal as the wills themselves, but once the formalities are met the parties can bind themselves and their heirs and devisees.

Bernard W. Abrams and Doreen Massell made such a contract. When Mr. Abrams moved into Ms. Massell’s Atlanta, Georgia, home, they began to discuss what would happen to one of them if the other should die. Since they were not married and had no plans to get married, they wanted to have a clear understanding of what to expect from one another.

In 1993 Mr. Abrams had signed a new codicil to his will, leaving $400,000 to Ms. Massell. In 1996, she signed her own codicil, which left the home in which the couple lived to Mr. Abrams. Later in 1996 the two of them decided to enter into an agreement not to change their respective wills.

With the help of an attorney Mr. Abrams and Ms. Massell prepared and signed a contract that each would agree not to write a new will without the other one’s permission. They signed the agreement and, presumably, congratulated themselves on their good, and thorough, planning.

Two years later Mr. Abrams went to visit his brother and never returned. He sent word back to Ms. Massell that he did not want to have any further contact with her, and he wrote a new will leaving everything to his family.

Ms. Massell sued Mr. Abrams for violating their agreement. He died while the lawsuit was pending. His family sought to have his new will—the one disinheriting Ms. Massell—admitted to probate, but she insisted that the estate owed her $400,000. Mr. Abrams’ family members, meanwhile, sought to invalidate the agreement by insisting that it was based on an “immoral relationship.”

The Georgia Court of Appeals rejected Mr. Abrams’ family’s claims. The court decided that the agreement was just what it purported to be—an agreement between two people who hoped to live together and support one another for the rest of their lives. Mr. Abrams had no authority to sign a new will unless he first secured approval from Ms. Massell. Abrams v. Massell, August 14, 2003.

Arizona law would also have recognized the contract between Mr. Abrams and Ms. Massell. Such an agreement must be in writing and signed, but would then be enforceable. Oddly, the contract to make (or to not make) a will is both easier to execute and harder to break than the will itself. The contract to make a will requires only a signature (where a will, in most cases, requires a signature and two witnesses). And since the contract is an agreement, it takes both parties to change (whereas a will, in most cases, can be unilaterally changed by its author).

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