Republications and Codicils
Dependent relative revocation (“DRR”):
Sometimes, although a testator revoked a later will, he or she may wish to revive it, thereby revoking the second will. The early common law rule (still followed by some states), allowed the revival of the first will following the destruction of the second will.
Most states today, however, reject the common law rule. Instead, in order for a revoked will to become operative again, it must be republished either by re-execution or a codicil conforming to the doctrine of republication by codicil.
Another method to disregard a mistakenly revoked will is by dependent relative revocation (“DRR”). This is an equity-type doctrine under which a court determines that the act of revocation was premised on a mistake of law or fact. As such, the revocation would not have occurred but for the testator’s mistaken belief that another disposition of the property was valid. If the presupposed disposition is ineffective, the previously revoked will remains in force. See, e.g., Carter v. First United Methodist Church, 271 S.E.2d 493 (Ga. 1980); Chambers v. Chambers, 542 S.W.2d 901 (Tex. 1976).
Like a will, a codicil is a testamentary instrument, but executed after the will, that alters, modifies or expands the provisions in the will. It too must be executed with the same formalities as the will. See, e.g., Leggett v. Rose, 776 F. Supp. 229 (E.D.N.C. 1991); In re Robert’s Estate, 437 N.E.2d 1205 (Ohio 1980). The codicil can be a separate piece of paper or follow the document it amends.
EXAMPLE: Sandy executed a will two years ago. Subsequently, she wanted to add a bequest for her niece, Jane. Accordingly, on a separate piece of paper, she handwrote “I hereby bequeath to my niece, Jane, if she survives me, $2,000.” Additionally, Sandy signed and dated the addition. In jurisdictions that recognize holographic testamentary instruments, this is a valid holographic codicil to the will.
In addition to modifying the will, a codicil may perform other functions:
- it may republish a prior valid will;
- it may incorporate by reference and thus validate a prior invalid will; or
- it may revive a previously revoked will that is still in existence.
In the last two chapters we delved into the requirements for executing a will, including various components and construction details. Next, we will put the will to the test. The next chapter will cover what is involved in estate administration, including what happens if the will is challenged.