Codicil
Key takeaway
Under Washington's estate statutes, unless context requires otherwise, a codicil is a will that modifies or partially revokes an existing earlier will.
How it works
In Minnesota, for example, a later will that does not completely dispose of the estate is presumed to supplement the previous will. Other states differ.
Unless clear and convincing evidence rebuts that presumption, the later will revokes only inconsistent provisions. Both instruments operate at death to the extent they are consistent.
Points that are easy to confuse
In Minnesota, for example, physical revocation requires intent to revoke and an act such as burning, tearing, canceling, obliterating or destroying the instrument or part of it. Other states differ.
The maker must perform the act, or another person must perform it in the maker's conscious presence and at the maker's direction. The following revival rules apply when that qualifying act revokes a later instrument.
A later instrument wholly revoked the earlier will
In Minnesota, for example, physically revoking a later instrument that wholly revoked an earlier will does not automatically revive the earlier will. Other states differ.
The earlier will revives if the revocation circumstances or the maker's contemporary or subsequent declarations show intent that it take effect as executed.
A later instrument partly revoked the earlier will
In Minnesota, for example, physically revoking a later instrument that partly revoked an earlier will ordinarily revives the revoked part. Other states differ.
The part does not revive if the revocation circumstances or the maker's contemporary or subsequent declarations show intent that it not take effect as executed.
Another later will revokes the revoking instrument
In Minnesota, for example, when another later will revokes an instrument that wholly or partly revoked an earlier will, the earlier will remains revoked to that extent. Other states differ.
The earlier will or revoked part revives only to the extent the latest will's terms show intent that the earlier will take effect.
Two related terms
Will. In Minnesota, for example, “will” includes a codicil and an instrument that only appoints an executor or revokes or revises another will. Other states differ.
Testamentary capacity. In Minnesota, for example, the capacity requirement for making a codicil is being of sound mind. The maker must also be at least 18, and other states differ.
Common questions
Does a codicil have to refer to or be attached to the earlier will?
No, under Washington's statutory definition, unless context requires otherwise, a codicil need not refer to or be attached to the earlier will.
Can execution under another jurisdiction's law qualify in Minnesota?
Yes, in Minnesota, for example, if execution complies with Minnesota’s execution statute or the law at execution of the signing place or a place where the maker is domiciled, has an abode, or is a national at execution or death.
This rule concerns execution validity only. It does not establish which jurisdiction’s law governs every other issue. Other states differ.
Sources
- Washington RCW 11.02.005: codicil definition and its reference and attachment provisions.
- Minnesota §524.1-201: statutory meaning of will, including codicils.
- Minnesota §524.2-501: age and sound mind requirements.
- Minnesota §524.2-507: revocation, physical acts and the presumption that a later will supplements an earlier one.
- Minnesota §524.2-509: revival after revocation of a later instrument.
- Minnesota §524.2-506: execution under Minnesota or another jurisdiction's law.