In this post, I discuss and explain the various different parts of a will and their importance when drafting your will.
I have written extensively in previous posts about wills, their importance, and the requirements for drafting and executing a valid will. In this post, however, I will simply outline the different parts of a will and how they come together to form a whole.
Integration of Wills
Integration of wills refers to taking different pieces of paper that are present at the time of the ratification of the will and bringing them together as parts of a single will. Through this integration, the parts of a will become one will.
Republication by Codicil
A codicil can be one of the significant parts of a will—a codicil simply being an amendment to the will. A testator may republish the will through a codicil. By doing so, the will updates with respect to the date it was executed. So, regardless of when the will was originally executed, after a republication by codicil, the execution date is updated to the date of the publication of the codicil.
So, for example, if the will was originally executed in 1999 and a republication by codicil was executed in 2005, the date of the will’s execution is 2005. This can help cure an issue with an interested witness—that is, a witness that inherits under the will.
Republication by codicil may allow an interested person that served as a witness to the original execution to inherit. Since witnesses to a will generally may not inherit property from the testator, action must be taken to ensure an interested witness can inherit.
Republication by codicil solves this problem. So long as the interested witness does not serve as a witness to the execution of the codicil, he or she may inherit after the codicil is executed.
In addition to saving a bequest to an original witness, republication can also save a bequest in the original will that may have failed for undue influence, so long as there is no undue influence at the time the codicil is executed. Republication by codicil is a good way to save otherwise suspect bequests in the original will.
To republish a will, the first will must be valid. Otherwise, the process has no real meaning. The presence of an invalid gift in the will—whether as a result of undue influence, bequests to interested witnesses, or a variety of other reasons—does not make the will itself invalid.
Incorporation by Reference
Incorporation by reference occurs when something outside the will is incorporated into the will. Such incorporation helps make outside documents one of the parts of a will. To incorporate by reference:
- The will must express an intent to incorporate.
- A sufficient description of what is being incorporated must be present in the will.
- The document that is incorporated into the will must exist at the time the will is executed. It cannot reference a document the testator intends to draw up in the future.
Courts are generally pretty lenient when dealing with the first two requirements of incorporation, so long as the intent is clear.
Acts of Independent Significance
Acts of independent significance dispose of property through a will by referencing acts outside the will. In this sense, therefore, outside behavior can in a way form parts of a will. As long as those acts have sufficient independence of effect on the testator’s estate, they are valid acts of independent significance.
Another such act of independent significant is changing the property to change the disposition at death without actually amending the will.
So, as a few examples, the following would be acts of independent significance:
- The will states, “$10,000 to each of my sons-in-law.” The marriage of the testator’s daughters would affect the disposition of this money. The daughters’ marriages are acts of independent significance.
- The will states, “Everything in my garage to my neighbor Bob.” Bob will therefore inherit everything in the testator’s garage when the testator dies. The testator can, during his or her life, move items in and out of the garage and thereby affect Bob’s inheritance. Such movements of property are acts of independent significance.
- The will states, “$15,000 to the persons that I name in a letter that I will send to my executor.” The writing of the letter will determine the recipient of this bequest and so is an act of independent significance.
Some types of property, such as deeds and stock certificates, are generally exempt from this rule and so must be provided for specifically in the will.
Contracts Relating to Wills
In most states, a contract to make a will or not to revoke a will can be established only by:
- Provisions in the will stating that a contract exists and stating the material provisions of the contract, or
- A binding and enforceable written agreement, such as buy-sell agreements or provisions in premarital agreements.
Contracts relating to wills are generally not one of the parts of a will but can have significant effects.