Family Law & Estate Law Collide

An examination of the laws of individual property and transfers of wealth requires reference to two wholly separate areas of law: estate planning and family law. The specific laws in each of these two areas will have implications for the consequences of property holding and transfers, but with quite divergent intentions and results.

Generally, however, family lawyers and estate planning attorneys operate quite independently of one another. Each discipline is complex, and its practitioners are specialized to the point that it may be unreasonable to expect attorneys to be fully versed in both areas. Nonetheless, it is important for attorneys to recognize that their advice and actions in one context for one purpose may well have significant implications for the other, and it is incumbent on attorneys in both disciplines to at least advise clients of that concern.

Estate planning attorneys and family lawyers are consulted at very different stages in the family’s planning. Estate planning deals with transfers of property from one generation to the next or future generations. It focuses on tax and estate laws in order to plan for someone’s incapacity and ultimate death and to preserve family wealth and protect the common interests of the family. Family law deals with dividing property and income between separating spouses or RDPs with adverse interests at the time of a marital dissolution.

Thus, there is a significant contextual difference between the attorneys who handle these matters. Estate planning attorneys assume common goals of preserving wealth for future generations and minimizing taxes. Family lawyers assume adverse interests and seek to protect and advance the interests of their respective clients, generally to the detriment of the other spouse or RDP.

The two types of attorneys can also differ greatly in their relationship with the client and the family. The estate planning attorney may have a long-standing relationship with the family and will generally work with both spouses or RDPs and sometimes multiple generations of the same family. The family lawyer, who is brought in when the family is dissolving and the spouses or RDPs are adversaries, will meet the nonclient spouse or RDP only as the opposing party. The family lawyer enters an adversarial relationship, whereas the estate planning attorney works with the couple and family as a unit with mutual interests.

Use and Preparation of a Codicil

A codicil is chiefly used to add new or supplementary provisions to a will, to revoke part of a will, or to revoke a prior codicil totally or partially. Other uses include revival of a revoked will, validation of an invalid will (i.e., incorporating by reference an improperly executed will into a properly executed codicil), and republication or redating of a valid will (e.g., updating the incorporation-by-reference clause in a pourover will when the inter vivos trust has been amended after execution of the will).

In deciding whether the testator’s wishes can best be carried out by a codicil or by a new will, the attorney should consider a number of factors. A codicil may be appropriate if the contemplated change is simple (e.g., altering the amount of a general pecuniary devise or appointing a different executor), the time to make the change is short, or the limiting of costs is important. A codicil may also be desirable if the testator’s testamentary capacity is currently questionable; if the codicil is held invalid, the will still survives.

If the codicil provisions will complicate interpretation of the will, then the drafter  should advise the drafting of a new will instead of a codicil. This is also sound advice if the testator has already executed several codicils. In this case, the attorney should prepare a new will consolidating all the testamentary provisions into one instrument.

In deciding between a new will and a codicil, you should also consider probate requirements. If the will and the codicil will have different sets of witnesses, the attorney should consider the possible inconvenience of proving the two instruments for admission to probate. If the change to be made by codicil will eliminate a particular devise, the impact of local probate rules governing notice should be checked. If the rules require notice of probate proceedings to any beneficiary of the will, including one whose devise has been revoked in a subsequent codicil, the testator may prefer a new will in order to eliminate the need to give notice to the former beneficiary. Notice to a disappointed former beneficiary may lead to more than just hurt feelings; a contest over the probate of the codicil may result. For the same reason, a new will may be desirable when a devise is reduced.

What is a Codicil

A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document. Basically if you need something changed in your Will, the Codicil is the way to go about doing this.  A codicil must be executed with the same formalities as a will and must be made with testamentary intent. A writing that refers to a will, but shows no intent to change it, lacks testamentary intent and is not a codicil.  A valid codicil is part of the will to which it refers, and both instruments are construed together as one.

The word “will” is defined by the Probate Code to include codicils “and any testamentary instrument which merely appoints an executor or revokes or revises another will.”Thus, provisions in the Probate Code that apply to “wills” also apply to codicils.

A codicil need not be executed in the same way as the will it modifies. Thus, a holographic codicil can be made to a witnessed will and vice versa. However, the codicil must satisfy the execution formalities for one of the recognized types of testamentary disposition. Thus, a witnessed codicil must satisfy the requirements for a witnessed will, and a holographic codicil must satisfy the requirements for a holographic will .

A codicil should clearly state the client’s intent to republish the previous will if republication is desired. Such a provision may be undesirable unless there is a thorough review of the will. Wills are generally construed based on the law in effect at the time they are originally drafted. If a relevant law has changed, republication may have the effect of changing the meaning of a provision the testator wants left unchanged.

Republication is not necessary to pass property acquired after the date of execution of the will. There are codes in Probate that provides that a will, whether or not modified or republished by a codicil, passes all property owned by the testator at death, including property acquired after the will execution.