top of page
  • Writer's pictureTroyer & Good, PC

Case Study: Handwritten Codicil Was a Wish, Not a Specific Devise

A Last Will and Testament is a legal document where you decide how your assets will be divided after your death. As your life changes, you may want to update or change your Will. One way you can change your Will is by use of a codicil. A codicil is a separate document that is kept with the existing Will. You can use it to make simple updates or changes to your Will.

In a recent Court case, Harold and Della executed identical Wills. The Wills stated that the assets would be held in trust for the benefit of the surviving spouse. At the death of the surviving spouse, the assets would be distributed equally to the couple's three children.

Harold died first so the trust was funded for Della's benefit. When Della died, the family found a handwritten codicil with a paragraph below her signature saying that "if at all possible," the couple's son son, Stewart, "should get control" and full ownership of a family-owned trucking business.

Calvin, the couple's son-in-law and trustee of Della's trust, filed a petition with the Court regarding the interpretation of the codicil. He also petitioned to approve a trust distribution and to consolidate the trust and estate proceedings.

The District Court consolidated the proceedings and ordered the trustee to distribute the assets equally to the three children. It found that the language in the codicil was insufficient to indicate Della's intent to make a specific devise (or gift) to Stewart.

Stewart appealed. The Supreme Court held that the District Court correctly interpreted Della's handwritten note on the codicil as a wish and not a specific devise of her stock in the family company. The Court said that the language "if at all possible" and "should" was expressing a desire and not a command.

This case illustrates the importance of having your legal documents properly executed. You should have an attorney prepare your Last Will and Testament. An estate planning attorney can make sure that your documents are valid under state law and that they meet your unique goals and desires according to your family dynamics and your current and projected estate tax liability. Call our office at 260-440-3241 or schedule an appointment online for a consultation with one of our attorneys.


bottom of page