Basic estate planning normally starts with a will. A person who writes a will is called a “testator.” To write a valid will, it must be:
1. Signed by the testator
2. Signed by two other witnesses
3. Notarized
However, sometimes the testator wants to edit or change parts of what the will establishes after it is completed. To do this, a testator should hire a law firm to draft a “codicil.”
What is a Codicil?
A codicil is a document that is written after a testator’s will is created that outlines what the testator would like to edit in their will. Generally, a valid codicil must be:
1. In writing
2. Signed by the testator
3. Signed by at least two other witnesses (if the document is not completely in writing)
However, Virginia courts have recently excused the requirement that a codicil has to be signed by the testator in certain instances. In the case of In re George William Estate of Asmuth, the testator, Mr. Asmuth, wrote a codicil after his original will was created. The witnesses and notary to this codicil properly signed their names at the end, but, instead of signing the codicil, Mr. Asmuth typed his name at the end of it, which is never advisable.
The Issue
When this codicil was brought to the court for the changes to be enforced against the original will, the court had to decide whether it could excuse Mr. Asmuth for not signing the codicil properly or if it had to throw away the codicil all together because of this mistake. To do this, the court had to determine whether the evidence surrounding the codicil was “clear and convincing” that this codicil was written by Mr. Asmuth. In this case, “clear and convincing” evidence would show that it is highly likely Mr. Asmuth meant for this codicil to change his will, even though it was not created properly.
The Ruling
The first thing the court looked at was the codicil itself. The title of the codicil was “additional changes to last will and testament” and that Mr. Asmuth “would like to make the following changes to [his] Last Will and Testament.” Additionally, the codicil was signed by two other witnesses besides Mr. Asmuth. These two factors led the court to conclude there was enough “clear and convincing” evidence within the codicil itself to believe Mr. Asmuth likely meant for it to change his will. The court then looked for evidence outside the codicil itself.
The court next compared the codicil to the will. In both the will and codicil, Mr. Asmuth asked that he be cremated, that his children inherited as little as possible from his estate, and that if his wife cannot manage his estate after he dies, that his stepdaughter would do so instead. Based on the evidence found inside and outside the codicil, the court found that the evidence did show “clear and convincing” evidence that it is highly likely Mr. Asmuth meant for this codicil to change his will, and therefore it was allowed to be treated as such.
Conclusion
In Virginia, it is possible that a codicil will be upheld as valid by a court despite it not being signed properly. For this to happen, the court will look for clear and convincing evidence that the testator wrote the codicil and intended for the codicil to change their previously written will. If the court cannot find evidence of this, even if the testator wrote the codicil and intended for it to change their will, then the codicil will not be honored after the testator’s death.
Smith Strong
An experienced Smith Strong, PLC attorney can advise you about your estate plan, prepare the necessary documents, and ensure that your wishes are clearly conveyed, even when those wishes change in the future. To sign up for our free Estate Planning Seminar or schedule your first meeting with attorney Van Smith and his team, please call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg). One of our attorneys will meet with you and guide you through creating and editing your will.
Special thanks to law clerk Brayden Meadows for his editorial and drafting assistance with this article.
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