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Can a Will be Changed After Death?


Can a Will Be Changed After Death - Promises, Promises, Promises

Can a will be changed after death?   As trial lawyers we get drawn into some of the strangest cases.  When I got that question from an old client, I almost answered "Yes, if we can do a seance", but she was serious, her partner of almost 30 years had just died and she was left out of his will.  

"He promised me years ago that he would add me” she said with complete honesty.   He was young (only about 62) and I knew that they were very close.  His will was ancient and left all of his assets to his sister.  (He had no children nor did my client.)   

So I gave my answer more seriously and sadly had to tell her that a will can be interpreted after death but not written.  He had written the will when he was young (and ambitious) and before he met her.  There wasn't much to interpret about the will.  

But that didn’t end the discussion. There was a series of e-mails and a letter when he was about to leave on a business trip where they actually spoke about his transferring his retirement account (he worked for a Fortune 500 company) to her on his death.

So this raised the issue. Was this a Will & Probate case or a Family Law case? Ever since the Marvin decision, certain promises made between unmarried people created a contract that was enforceable. It was not a probate or will issue, it was more of a Family Law and contract issue.

If a will cannot be changed after death was this a probate case at all? Well probably not but what about a holographic will? You might ask “What is a holographic will?” Well, it is a fancy word for a will that is handwritten and not signed by witnesses. It is an old time type of will and often executed at the very last minute.

A holographic can even be an attempt at a will that might not fully comply with Probate Code Section 6110. It does not need a witness. It does need the signature and the material provisions in the handwriting of the testator (the person who died). If this document contains a statement of testamentary intent (meaning what the person intended to do in plain English), it can be in the testator's own handwriting or as part of a commercially printed form will. (Probate Code § 6111)

Given these loose standards was it worth raising the holographic will issue at all? The e-mails don’t count but what about the letter as he was about to leave on a trip? He was a tech guy. E-mailed constantly. Why did he choose this one time to put something in handwriting vs. digital? Did it qualify?  What did he intend?

At Lawyers in Lafayette we promise to connect people with the best lawyer for their case. What was the best lawyer for this case? Probate? Family Law? Does anyone truly specialize in both? And if it needs to be litiigated should we handle that portion? In the end, I took the case and brought in a Probate lawyer and a Family Lawyer to consult. A few demand letters and a “faux” lawsuit (I wrote it up and said I would file it), led to a settlement with the estate.

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