Also known as: codicils · codicillary · codicillus · will supplement · testamentary addition
Written by attorneys — see sources below.
A testamentary instrument executed with the same formalities as a will that amends or supplements a prior will without replacing it entirely. The codicil must be executed with testamentary intent and becomes part of the will when admitted to probate.
Carmen Choi executed a will leaving her estate to her brother. She later executed a second will revoking the first and leaving everything to a charity. Months afterward Carmen executed a codicil that expressly referenced the first will and stated her intent to revive it. After her death the codicil revived the original will under the applicable revival rule.
Caleb Chang executed a will leaving his house to his daughter. After a falling out he executed a codicil that revoked the devise to his daughter and instead left the house to his nephew. The codicil was properly witnessed and admitted to probate along with the original will.
Mary Sheldon Lyon executed a will in 1943 that left almost her entire estate to defendant Father Divine, leader of a religious cult, two corporate defendants connected with the cult, and individual defendant Patience Budd, an active follower of Father Divine. Plaintiffs, first cousins of the decedent but not her distributees, allege that after making this will the decedent on several occasions expressed a desire and determination to revoke it and to execute a new will under which plaintiffs would receive a substantial portion of the estate. Shortly prior to her death the decedent had attorneys draft a new will naming plaintiffs as legatees for legacies totaling approximately $350,000. By means of false representations, undue influence, and physical force, defendants prevented the decedent from executing that new will. Shortly before her death in October 1946, the decedent again expressed her determination to execute the proposed new will favoring plaintiffs, whereupon defendants conspired to kill and did kill her by means of a surgical operation performed by a doctor engaged without the consent or knowledge of any relatives. After the decedent’s death the 1943 will was contested by distributees and probated under a compromise agreement to which plaintiffs were not parties and under which the defendants received a large sum from the estate. Plaintiffs filed an amended complaint seeking a declaration that defendants hold the property as constructive trustees for plaintiffs. The complaint was dismissed for insufficiency on a motion under rule 106 of the Rules of Civil Practice. The Appellate Division affirmed the dismissal, and the Court of Appeals took the case for review.
View caseCynthia Cortez executed a will and later added a codicil directing that all estate taxes be paid from the residuary estate. The codicil was admitted to probate with the will and controlled the allocation of tax burdens among the beneficiaries.
Open the case page for the full write-up.
View caseCarlos Castillo hired an attorney to prepare a will and codicils that would create a trust for his grandchildren. The attorney negligently drafted language that violated the rule against perpetuities. The codicils were held invalid to the extent they contained the defective provisions.
Plaintiffs, who are some of the beneficiaries under the will of Eugene H. Emmick, deceased, brought this action for damages against defendant L. S. Hamm, an attorney at law who had been engaged by the testator to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer to the second amended complaint without leave to amend. The allegations of the first and second causes of action are summarized as follows. Defendant agreed with the testator, for a consideration, to prepare a will and codicils thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15 per cent of the residue as specified in that paragraph. Defendant prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code. Paragraph Eighth of these instruments transmitted the residual estate in trust and provided that the trust shall cease and terminate at 12 o’clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over the probation of this will. After the death of the testator the instruments were admitted to probate. Subsequently defendant advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount. As a result, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator. The third cause of action alleges that after admission of the will and codicils to probate, Harold Houghton Emmick, Walton Russell Emmick, Delta Inez Spelman, and Retha Newell instituted a will contest. The executors, defendant, and the contestants reached a settlement agreement under which $10,000 would be paid to the contestants from the assets of the estate in return for releases. Defendant caused to be executed releases which did not preclude the contestants from a subsequent attack upon the validity of the testamentary instruments. As a consequence, the contestants joined in a legal attack upon the validity of the residual clause and plaintiffs would have received an additional sum of $15,000 from the estate if the releases had been prepared in accord with good legal practice. The trial court sustained a general demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal from which the plaintiffs appealed.
View caseClaire Campbell executed a will and codicil that created a trust for her spouse. After her death the executor claimed a marital deduction on the federal estate tax return. The codicil's terms were examined to determine whether the spouse's interest qualified as a deductible terminable interest.
In 1930 a New York resident created a revocable trust that was amended in 1931. The trust directed income from the corpus to his wife for life. It also granted her a general power of appointment. In default of appointment half the corpus passed to the decedent's heirs and half to the wife's heirs. In 1951 the wife executed an instrument that purported to release the general power and convert it into a special power. The decedent died in 1957. His estate claimed a marital deduction for the widow's trust on the federal estate tax return. The Commissioner disallowed the deduction under section 2056(b)(5) of the 1954 Code and assessed a deficiency. The estate petitioned the Tax Court for redetermination. While that proceeding was pending the estate obtained a New York Supreme Court decree declaring the 1951 release a nullity. The Tax Court accepted the decree as controlling and allowed the deduction. A divided Second Circuit affirmed. The companion case involved the estate of a Connecticut decedent who died in 1958. His will directed payment of estate taxes without proration and created a residuary trust granting his wife a general testamentary power of appointment. The Commissioner disallowed part of the marital deduction. The executor then obtained a probate court order applying the state proration statute. The District Court refused to treat the probate decree as binding on federal tax questions. The Second Circuit agreed the decree was not conclusive. The two cases reached the Supreme Court after the Second Circuit panels reached differing conclusions on the effect of the state decrees. Certiorari was granted to resolve the conflict among the circuits.
View caseChristian Coleman executed a will and later a codicil directing that his house never be sold. After his death the executor sought to sell the property to pay debts. The codicil's restraint on alienation was held invalid under state law.
In 1902, a trust indenture established Kingsbury Place as a private subdivision in St. Louis, with covenants requiring maintenance as desirable residence property of the highest class. The indenture empowers trustees and property owners to enforce its provisions against encroachment or injury. Except for one vacant lot, the subdivision features spacious two and three-story homes used exclusively as private residences. Louise Woodruff Johnston, owner of the house at #4 Kingsbury Place, died on January 14, 1973. Her will directed the executor, Mercantile Trust Co., to cause the home to be razed and the land sold, with proceeds transferred to the residue of the estate. Following Johnston's death, neighboring property owners and trustees for the Kingsbury Place Subdivision filed suit against the executor seeking an injunction to prevent demolition of the house. The plaintiffs contended that razing the home would adversely affect their property rights and the community. During trial, uncontradicted testimony established that the current value of the house and land totaled $40,000, while the empty lot would fetch no more than $5,000 after $4,350 in demolition costs. The St. Louis Commission on Landmarks and Urban Design had designated Kingsbury Place as a city landmark due to its architectural significance. Witnesses testified that demolition would depreciate adjoining property values by an estimated $10,000 and create a break in the urban design continuity. The trial court dissolved the temporary restraining order and ruled against the plaintiffs on all issues. The plaintiffs then appealed the denial of their petition to the Missouri Court of Appeals.
View caseA codicil amends or supplements an existing will without replacing it entirely. A subsequent instrument that completely revokes the prior will is treated as a new will rather than a codicil.
Yes. A codicil is itself a will and must satisfy the same execution requirements, including signature and attestation where required by statute.
Supporting sources
A codicil can revive a revoked will if it expressly indicates an intent to revive the earlier instrument under the applicable revival statute or restatement rule.
Supporting sources
The later-executed instrument controls to the extent of any inconsistency. The codicil revokes the will only to the extent the new provisions are inconsistent with the earlier document.
Supporting sources
…of the will of one Brewster, a resident of Connecticut who died in September of 1958. The decedent's will, together with a codicil thereto, was admitted to probate by the Probate Court for the District of Hamden, Connecticut. The will was executed in 1958 and directed the payment "out of my estate my just debts and…