Changing a Will

You have executed a Last Will and Testament. Now, you want to change to it. What are your options?

In Mississippi, there are several ways to change a Will. In this article, we will look at each of them.

This is probably the most common method of changing a Will. You simply have a new Will prepared and executed.

The new Will supersedes the prior Will. It is, however, both advisable and commonplace to include a provision in the new Will with words to the effect “this Will revokes and supersedes all prior Wills previously executed by me.”

A Codicil is an instrument that operates as an amendment to an existing Will. A Codicil must be executed with the same formalities as a Will.

Destroying a Will

If you do not like the terms of your current Will, you may simply destroy it or mutilate it.

This is not the most advisable means, however, of changing a Will. Unless your legal heirs are aware that you have destroyed the Will, upon your death they may assume the Will has simply been misplaced.

In addition, the Mississippi Supreme Court is of claims that a testator destroyed his or her own Will.

In Matter of Estate of Carpenter, the Mississippi Supreme Court held that a testator can partially revoke a Will by drawing lines through parts.  This was so even though the testator did not have two witnesses attest to the changes.

It does not appear, however, that a testator can add language to the Will without having the changes made with the formalities required to create a Will in the first instance. See Matter of Palmer’s Will.

Finally, we look at this doctrine. The name is a mouthful, and it is better understood as “revocation under a mistake.”

It works this way. Assume a testator has a properly executed Will in which he leaves property to his son. Then, the testator executes a Codicil that leaves the same property to a third-party.

By executing the Codicil, the testator has successfully revoked the prior provision in the Will that left the property to his son.

But, after the testator dies, it is determined that the Codicil is invalid because the devise to the third-party cannot legally be carried out for some reason.

The doctrine holds that had the testator known the devise in the Codicil could not be carried out, he would not have executed the Codicil in the first place.

Thus, the devise of the property to the son in the original Will is revived.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110.

601-607-3156.

www.craigpanterlaw.com

Craig Painter

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