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Holographic Codicil, Partial Revocation or Dependent Relative Revocation?

Ferguson Hayes Hawkins, PLLC Jan. 25, 2017

Wow… now that’s a mouth full.
A little while back I posted about a Holographic Will–which is a handwritten Will. Too often, I see clients who wish to revise their Wills, either through amendment (a codicil) or a new Will. Unfortunately, many of these clients have marked through portions of the ORIGINAL WILL and brought it to the office. Often there are initials, and often there is substitute language–such as a new item, amount, or beneficiary name handwritten onto the document.

It is possible to do a holographic codicil–i.e., an amendment to a Will (either holographic or written attested). However, the same rules apply for a Holographic Codicil as apply for a Holographic Will–you disregard ALL printed material on the page. So, the “mark throughs” arguably VOID the original Will terms, but because the additions/write-ins fail to meet the holographic Will requirements, they must be disregarded. So, at least a portion of the existing Will is cancelled, but the ‘written in’ portion does not have legal effect.

This presents significant legal issue in that there is then a question as to whether the Testator (maker of the Will) wished to revoke:

  1. just the marked portions (which in some instances could be so significant as to effectively revoke the entire Will);

  2. the entire Will; or

  3. would prefer that the Will be deemed to be “intact” with mark-through being disregarded (that is, applying the original language).

The third option is, in its simplest form, the concept of DEPENDENT RELATIVE REVOCATION which is a legal principal developed to try to preserve the intent of the Testator. The basic concept is that, if the Testator would likely have preferred that the Will be left in-tact, rather than revoked as to that section, then it may be possible to preserve the Testator’s second choice, since the first choice (the mark-through and write-in) cannot have legal effect.

Wills can become complicated. Partial modification, codicils and revocations make them more so.