QUESTION
Can a codicil be admitted without the will it references?
Asked on Nov 01st, 2013 on Estate Planning - Michigan
More details to this question:
We have my father's will from ten years ago. It is properly signed and witnessed. We also have a codicil that is signed and witnessed and modifies an article of the will by reference, but the codicil explicitly states that it modifies "my last will and testament dated July 2011". We don't have a will from 2011 - the will we do have is from 2003. We are unsure if there is a 2011 will that's lost, or if there was a 2011 will that was revoked or if he just didn't know how old his will was. Can the codicil be admitted to modify the will we do have when it unambiguously references a will made many years later?
11 ANSWERS
3 Awards
It depends. You should sit down with an attorney who can review the actual documents that you do have. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
Answered on Nov 07th, 2013 at 6:27 AM
Edwin K. Niles
It should be "lodged" with the court and offered for probate.
Answered on Nov 06th, 2013 at 11:15 PM
Divorce Attorney serving Bingham Farms, MI
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Gottlieb & Goren, P.C.
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You need to contact the attorney who created the 2011 Will to see if he or she has a copy.
Answered on Nov 06th, 2013 at 11:10 PM
2 Awards
Not likely unless when you look at the will and codicil you do have, it makes sense and would suggest the "2011" is a typo. Have an attorney review all of the documents that you do have, and he/she can properly advise you. Most attorneys give free consultations.
Answered on Nov 06th, 2013 at 6:14 AM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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That's an interesting question. Never seen that before. What courts do is try to figure out what the testator intended, even if there are technical or other problems with a will. The best approach, if possible, would be to have all of those persons affected by the will(s) get together and try to come to an agreement on what the intent was. Otherwise, it may end up as a payday for a bunch of lawyers.
Answered on Nov 06th, 2013 at 6:08 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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I would include it and if anybody else has an issue with it, then it is there.
Answered on Nov 06th, 2013 at 5:57 AM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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The codicil can be admitted. Whether the will can be admitted is another story.
Answered on Nov 06th, 2013 at 5:53 AM
Thomas Edward Gates
No, only the will it references can be admitted.
Answered on Nov 01st, 2013 at 11:50 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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No, unless the codicil is in fact a will, and has all of the legal attributes required of a will the document may be inappropriately titled or mislabeled. Seek out a experienced probate lawyer to assist you; these are not easy cases. And keep on looking for the will referred to, including to see if a lawyer or paralegal was involved in assisting the preparation of the will, as they may have information to assist you. Also, was there a lawyer or paralegal involved in the preparation of the alleged codicil? Lost wills have been found in woodsheds, workshop, and other unusual places. So think like your father, and see if you may come up with an answer to your quandary as to the alleged will of 2011.
Answered on Nov 01st, 2013 at 10:09 PM
The codicil modifies the 2011 will. If there was a 2011 will, most likely the 2003 will would have been revoked by the 2011 will. Hopefully the attorney who drafted the documents can shed some light into this. I suggest you take all the documents to an attorney for review along with any provable facts to determine if there is a valid will now.
Answered on Nov 01st, 2013 at 10:09 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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You are going to need to get the judge's permission to admit this. It is hard to say what would happen. If the Will was in the possession of the testator, there is a presumption under Michigan law that it was revoked. It is hard to say what the effect of the codicil would be and it will probably depend on whether the codicil could stand on its own.
Answered on Nov 01st, 2013 at 10:08 PM