Does a Codicil to a Will have to be witnessed to be valid?

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Does a Codicil to a Will have to be witnessed to be valid?

My partner’s father just died and his partner (and joint tenant) has produced a Codicil to the Will. The Will has a clause which states that anyone “contesting” the Will or, “seeks otherwise to void, nullify, or set aside the Will or any of it’s provisions, then that person’s right to take interest given to him or her by this Will shall be determined as it would have been determined if the person had predeceased the execution of the Will without surviving issue.”Is the Codicil an attempt to do just that a therefore could it be seen as being in breach of the above article?

Asked on June 28, 2011 under Estate Planning, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Ahhh.  The ol' "no contest" clause.  Lots of people like to use them.  Some decedents think that it gives them the ultimate control even after they are gone.  Laws as to codicils vary from state to state but the general rule is that a codicil must be executed in the same manner as a Last Will and Testament. In California two witnesses must sign and date a Will in the testators presence.  However, there seems to be some times when the codicil may not have to be witnessed, like when it is handwritten by the testator (called a holographic Will).  I would take the document to an attorney to review on your behalf.  Good luck. 


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