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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 42873
Experience:  Texas lawyer for 30 years in Estate law
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If a Will makes it clear that a handwritten document or

Customer Question

If a Will makes it clear that a handwritten document or letter has been created by the testator and attached to the Will regarding the distribution of certain assets, but, after the testator had died, the Will is presented for probate without the said addendum and without a codicil or other writing addressing the missing document, does the absence of the said addendum constitute an improper “alteration” of the Will and thereby destroy the Will as an enforceable legal document? If so, is the altered Will void or voidable on its face as a matter of law? NOTE: Under NJ law, NJS 3B:3-16, "No devise in, or clause of a will may be altered, except by another will or codicil or other writing declaring the alteration executed in the manner in which wills are required by law to be executed."
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. Ray here to help you today.

The letter here would have to be filed with its own application for probate.The court would decide whether it constitutes a valid hand written codicil.If you are a beneficiary you would make such application and seek to contest the application with the will but without the codicil here.

The burden is on the potential heir here to contest the will and make application to probate the codicil.That puts it all in dispute and the probate court has the final say in NJ.Unless the beneficiary files the codicil and contests the court has no way of knowing there is a dispute and second codicil from the deceased.

If you make such application the court may find it is valid and admit it here.

Expert:  RayAnswers replied 1 year ago.

In NJ too be valid, a holographic will or codicil must be written and signed in the handwriting of the person making the will.

Expert:  RayAnswers replied 1 year ago.

Recent case law where writings are considered as holographic codicils ..

http://www.archerlaw.com/files/LaRatta_2.21.11.pdf

You will need a local lawyer to make application to probate the codicil and put it before the court and seek to have it be admitted as a valid codicil to the will which was filed here.

I appreciate the chance to help you and wish you the best here.

Thanks again and a happy new year.

Customer: replied 1 year ago.
Ray, you have not answered my question, and it appears that you don't have the answer. Clearly, I didn't ask for procedures related to probate, or who decides whether a codicil is valid or not, or whether there is a second codicil, or whether a beneficiary should contest anything, or who has the burden of proof in probating a codicil. In fact, NO CODICIL exists in the scenario that I provided to you. Unfortunately, I am not satisfied with your response, and, in all good conscience, please reverse your fee. Thank you.
Expert:  RayAnswers replied 1 year ago.

The heirs here have the burden to make application to probate the codicil.If the original applicant leaves it out for whatever reason, then the beneficiary--persons who benefit under codicil file their own application.The executor here is not obligated to probate the letter, but once the beneficiary files their own application the court has to decide whether it is a valid codicil and modifies the original will and the terms.It may well do so.

I hope that clarifies this for you.Please let me know if you have more.Thanks for your patience.