How Changing Your Will With A Codicil Is Bad

How Changing Your Will With A Codicil Is Bad

Here is a sad but true tale about a will change gone terribly wrong.
Mary Jane executed her will on February 13, 2017. There was a clause in her will appointing her two daughters, Linda and Julia, as co-executors of her estate.
Mary Jane died 10 months later.
Her daughters duly filed an application to admit her will to probate. They requested that the court appoint them the co-executors of her estate.
Then along came son Jim Bob bearing a codicil that purported to name him executor. The codicil was signed by mom Mary Jane and dated March 31, 2017.

What is a Codicil?

Codicil” is a fancy name for a written amendment to a will. It has to be signed with the same formalities as a will to be effective. It is fairly common to use a codicil to change just one or two parts of a previously executed will.
In Jim Bob’s world-view, 6 weeks after signing her will his mom had second thoughts about who should act as the executor of her estate. Instead of making a whole new will, she just signed a codicil so that he could serve as executor.
Sisters Linda and Julia were not happy. They challenged the validity of the codicil.

The courts are really strict about codicils

To be blunt, courts do not like codicils because they alter or revoke parts of the original will. Courts therefore put all sorts of requirements on codicils. One requirement is that a codicil must contain a reference to the prior will that it is changing.
Mary Jane’s codicil started off as follows: “I, Mary Barber Hargove (also known as Mary Jane Hargrove), a resident of Val Verde County, Texas, do make and publish this the First Codicil to my Last Will and Testament, which was executed in the Summer of 2016…..”
Therein lay the first problem for Jim Bob. The only will that anyone could find was dated February 13, 2017, which is a far cry from “the Summer of 2016.” The Court said it could not simply overlook the date discrepancy. The codicil, in effect, was a change to a non-existent will.

There was another big problem with the Codicil

In the codicil, Mary Jane stated “Linda Hargrove was named Executor in my Will” but in her 2017 will, Mary Jane had named co-executors. The court did not like that discrepancy, either.
In the end the court tossed the codicil and, with it, Jim Bob’s claim to be appointed executor of his mom’s estate.
There are two take-aways. First, if you want to change your will, do not use a codicil to do so. Just execute a new will.
Second, if you have to use a codicil, make sure it correctly references the will and the sections that are being changed.
There are over 300 cases interpreting Texas Estates Code Section 253.002, a one-sentence statute that sets forth the requirements on how to validly revoke or make changes to a will.

The process should be simple. It is not.

Virginia Hammerle is a licensed Texas attorney. Her practice includes estate planning, litigation, guardianship and probate law. See hammerle.com for her blog and newsletter sign-up. This column does not constitute legal advice.