Will the will or codicil hold up in court? 10 Answers as of November 28, 2011

From the description, I am unable to tell if either document is valid. You state that the Will is signed by your father and his lawyer. A Will and/or a codicil, to be valid, needs to have two witnesses, or must qualify as a holographic Will and be completely handwritten, dated (best) and signed by your father at a time when he was competent. The codicil, if valid, does not revoke the Will (if it revokes the prior Will , then it is a Will not a codicil), but it does alter the terms of the Will. I urge you to meet with an attorney and have the attorney review both documents to determine whether either or both of the documents conform with the legal requirements. It is possible that neither is valid and that would mean your father died intestate.

The will and Codicil (which changes or modifies the will) are both valid if they are in writing, signed by your father and witnessed by two people. It can be challenged for undue influence or if your father was not competent to know what he was doing. That would have to be contested in court.

A codicil is usually and addition or deletion from an existing will. It almost never could be used to replace the entire will. You would just re-write a new will if that were the case. A will (or a codicil) does not have to be notarized. It also does not need a lawyer's signature, even though most wills are drafted by lawyers. It does, however, require that there be two (2) witnesses to your father's attestation that it is his Last Will and Testament (or codicil), otherwise, the document is not recognized by NYS law and is useless. So, if the will and codicil both conform, they will both be used.

A codicil modifies an existing Will but does not revoke the Will. Assuming that both the Will and the codicil are properly executed, both can be given effect. There may be issues concerning validity based on factors like "undue influence" , but such issues are beyond the scope of your question and should be discussed with your attorney.

Your question is should the codicil or will be used in probate court. The answer is likely both. A codicil is an instrument created after a will, usually to add or change something in the will. Both documents are towork together, and the codicil must meet all the same requirements as a will for it to be valid.

A codicil changes a will. Both documents are valid but the terms in the codicil is considered the most recent and will will control. That means, the changes made will be the new will.

I'm not sure how power of attorney comes into this; power of attorney is of no effect after the principal dies. It sounds like the will was signed by your father and witnessed by a lawyer one more witness would be needed. The codicil is then signed by your father and there is a witness, but again, one more witness is needed. The notary might be a witness if he or she saw your father sign the will. Then, in any last-minute will execution there is the question of whether the testator had capacity. The witnesses would have to be able to say your father clearly understood what he was doing. The degree to which the codicil stands your father's estate plan on its head is relevant. Ask yourself what is at stake. Will contests are very hard on a family, so please don't lose yours over small change. If, however, you feel your father was unduly influenced at the end of his life, and there is much to lose, then get an attorney and assert your rights.

Possibly both possibly one maybe neither. Loads of additional questions here, and no quick and easy answers I'm afraid. The question of "which document wins" depends on the evidence or lack of evidence of several things. All things being equal, the last testamentary document typically revokes (by its own terms) anything executed earlier. Codicils are a common exception to this, as a Codicil is routinely used to revoke and replace only a part of the original document. In lots of cases, both documents coexist and work together just fine there doesn't have to be a winner. But there are a number of extra issues that I'd explore with the Codicil you describe. The fact that your sister wrote it herself is not of tremendous importance, unless she wrote down her intentions at the expense of your dad's. You also mention that she "had" your father sign it, which you may mean as "forced" him to sign it, or you may have meant that she simply gave it to him to sign. Sadly, yours is not an issue that this forum can appropriately address. It takes more than a couple of sentences from you to determine how the law applies to your facts.

You should definitely consult with a lawyer before admitting anything to court. Once you file a will or codicil with the Surrogate's Court, you can not just make a decision to take it back. It will be up to the court. However, your question is not answerable without knowing who the Executor is and which would benefit you personally more. You should consult with a lawyer before filing. While the codicil has issues, if it benefits you more, than you would implement a different strategy than if it hurts you. If the codicil hurts your beneficial interest, you have strong grounds for an objection