Changing, Amending, or Revoking a Last Will With a Codicil or Other Means

Although a will is written during the lifetime of its maker, it is testamentary by nature; meaning it takes effect only upon the death of its maker. Therefore, it is a changeable document, one that can be amended, altered, or revoked any number of times prior to the maker’s death. Many wills are revised by the use of a codicil.  A codicil is a written instrument that amends and/or supplements the contents of an existing written Last Will and Testament.  A codicil must be executed according to the same formalities of New Jersey law as the original will. If a codicil is revoked prior to the maker’s death, and another codicil or valid last will is not signed by the maker to take the place of the prior codicil, the decedent’s property may be transferred according to the laws of intestate succession. Intestate succession means dying without a will. I have a dedicated page on intestate succession which you can refer to after reading this page. It can be found by going to the Table of Contents to the right-side column of this page.

A codicil is a convenient and simple method of amending, changing, and revising a will. Generally, it is only one or two pages in length and is not as costly as having your entire will redone. For these reasons, codicils are frequently used to make changes to a will at a reduced cost.

Amending or Revoking a Last Will and Testament By Use of a Codicil

When Should Your Last Will Be Updated or Changed?

Your Last Will can and should be revised if any of the following situations occurs:

1. There are changes in your family situation (marriage, divorce, birth or death of individuals, adoptions, etc.)
2. There are changes in your business structure, ownership, valuation, and/or an increase in your personal wealth (the sale or acquisition of an asset, an increase or decrease in the value of a business asset or closely held business)
3. Changes are adopted by Congress or the State of NJ in the tax laws that could result in significant estate and/or income tax savings if implemented; or, conversely, detrimental estate tax and income liability that could be avoided if the provisions of your existing will are not amended.

Remember, a will can always be revoked, amended or changed at any time according to New Jersey law before your death or loss of legal understanding (a/k/a competency).  There are a number of methods by which a will can be changed or revoked, but not all states recognize all of the methods permitted in NJ. Therefore, it is advisable to consult with a New Jersey will and trust attorney to see how a will amendment or revocation is permitted in New Jersey.

The most frequent means of revoking a last will are the following:

1. Formal revocation/cancellation: This process of revoking a last will involves a formal document which is captioned as a revocation of a prior will. It is usually a signed, witnessed statement of revocation. Frequently, the cancellation of a preexisting will occurs in a later written instrument, which contains an express statement that all previous wills signed by the maker are cancelled and revoked at the time the document of cancellation is validly executed.
2. Revocation by destruction or by being misplaced (lost): This process of revoking a last will involves the tearing, burning, or obliteration of a will by its maker. The destruction must be accompanied with an intention by the maker to have the entire will revoked. If an intention to revoke the will cannot be proven, then the will is still deemed to be a valid instrument. Thus, in cases of individuals who have had their original will(s) destroyed without an intention to revoke the will (e.g., floods, natural disasters, house fires, lost, etc.), a copy of the will is presumed to be a valid, binding instrument even if it has been destroyed. In cases like this, and where a copy of the original will cannot be found, the court will attempt to follow the provisions of the lost will if the contents of the will can be proven from another source (e.g., an unsigned copy of the will kept by the attorney).
3. Revocation by execution of a subsequent or later last will: This is perhaps the most frequently used method of cancelling a prior will. In most circumstances, this involves a formal declaration or statement in the subsequent will that all prior wills and codicils are revoked as of the date the subsequent will is signed.  It is important for an individual to expressly revoke any and all prior wills upon the subsequent execution of another will, since a person may only have one validly executed will. If neither will is dated so that it cannot be determined which will supersedes the other, neither document will be given legal effect and the estate of the deceased must be distributed according to the laws of New Jersey intestacy.

Sound like you need to change your Last Will? If so, call our office today. Ask for Mr. Niemann to personally discuss your questions and individual situation toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.

 

 

 

Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Last Wills Attorney