A will is a legally binding document that remains valid until it is formally revoked or superseded. While Louisiana law allows for a last will and testament to be amended with a codicil, this document could thrust an estate into uncertainty if it is not properly written and reviewed.
A codicil is a special, written document that amends a will. Codicils typically explain, modify, or revoke a previous will provision.
Uses of a Louisiana Codicil
- Name a new beneficiary
- Designate a new guardian for a minor child
- Remove an heir from the will
- Explain a disinheritance decision
While a codicil can be used to alter a last will and testament in any number of ways, estate planning attorneys usually recommend that it only be used for minor modifications. If a codicil is used to overhaul a will in its entirety, it is often easier to simply re-write the will than to ensure that the codicil does obfuscate the testator’s intent.
What Makes a Louisiana Codicil Valid?
- The testator must be at least 18 years of age.
- The testator must be of sound mind and free from undue influence.
- If the codicil is used to amend a notarial will, the documents must both be written, signed, dated, and witnessed before a notary.
- If the codicil is used to amend a handwritten will, or an olographic will, the codicil should also be written entirely in the testator’s own handwriting.
If you have already submitted or filed a copy of your will with your parish probate court, you should also file a copy of your codicil in the same court. Keep a copy of the codicil alongside your will.
Can Codicils Be Challenged?
It’s possible for a codicil to be challenged just as a will might be challenged and for many of the same reasons.
Common Reasons for Challenging a Louisiana Codicil
- The testator was under undue influence. The person writing the will and codicil cannot be pressured or influenced by a third-party into making any specific inheritance decisions. If a creditor, beneficiary, or other interested person believes that the testator was coerced into including a provision or disinheriting an heir, they could challenge the codicil on grounds of undue influence.
- The will was not executed in accordance with state law. If one of Louisiana’s formal requirements for creating a will and codicil was not fulfilled, the codicil could be challenged. However codicil challenges often have unintended consequences. While they could lead the court to simply dismiss the codicil, they can also lead to the will being scrutinized and cast aside. If the will is discounted in its entirety, the estate could be forced into intestate proceedings.
- The testator was mentally incapacitated. Louisiana law presumes that most adults have the mental capacity to create and amend a will. However, if an interested party furnishes compelling evidence that the testator was not of sound mind when they wrote the codicil, the court could be persuaded to strike the specified amendments.
Even bad-faith challenges to a codicil could be costly. If the petitioner does not prevail in court, the personal representative may have to use the estate’s resources to defend the codicil. Since probate litigation can be costly and time-consuming, a codicil challenge could drain an estate’s resources before beneficiaries ever receive their inheritances.
Contact a Louisiana Succession Attorney
A codicil is not always the best way to update an estate plan. Since codicils can be easily challenged, you should always have an experienced Louisiana estate planning attorney review your revisions before you execute your codicil. Please send Scott Vicknair Law a message online, or call us at 504-264-1057 to schedule your consultation at any time of the day.