Art app

Can I change my will without rewriting everything?

Lake Charles, LA (KPLC) – Legal Corner answers viewers’ civil questions.

QUESTION: I want to change my will. Can I do it myself with a codicil instead of having to rewrite the whole will?

ANSWER: Yes, but be careful. The shape of the codicil is critical.

A codicil is an addition or reservation to a will and is considered part of the will.

To be valid, a codicil must be made in one of the forms prescribed for a valid will under Louisiana law, and it must bear the same formalities. See Estate of Cannon, 166 So. 3d 1097, 2015 The. App. LEXIS 576**; 2014 0059 (The. App. 1 Cir. 3/25/15). There are two forms of wills: holographic and notarized. La. Civ, Code art. 1574. The holographic will is a will entirely written, dated and signed by the hand of the testator. See La. Civ. Item code 1575. A notarized will must be dated and it must be signed at the bottom of each page, and the last page must be executed before a notary and two witnesses with a special clause called an attestation clause.

In addition to the formal requirements, a holographic will must contain the “testamentary intention”, i.e. it must, by its own language, show on its very face that it purports to dispose of the testator’s property. upon his death. A valid holographic will must do more than express or explain the wishes or desires of a deceased; the document must show the intention to pass the property of the deceased through the instrument itself. See Estate of Cannon Supra.

So, in summary, for a codicil to be valid, it must either:

  • Be dated, signed and entirely handwritten by the testator.

WHERE

  • It must be dated and signed at the bottom of each page and executed before a notary and two witnesses with a special attestation language.

AND, if holographic,

  • It must show a clear gifting intent to transfer ownership. Mere wishes or suggestions are not enough.

Below are code snippets that define both types of forms:

Art. 1577. Formal requirements

The notarized will must be in writing and dated and must be signed as follows. If the testator can sign his name and read and is physically able to do both, then:

  • (1) In the presence of a notary public and two competent witnesses, the testator must declare or serve on them that the deed is his will and must sign his name at the end of the will and on each separate page.
  • (2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or a substantially similar declaration: “In our presence, the testator has declared or signified that this document is his will and signed it at the end and on another separate page, and in the presence of the testator and each other, we inscribed our names that day of…”

Art. 1575. Holographic Testament

  • A. A holographic will is a fully written will, dated and signed by the testator’s hand. Although the date can appear anywhere in the will, the testator must sign the will at the end of the will. If anything is written by the testator after his signature, the will is not invalid and this writing may be considered by the court, at its discretion, as part of the will. The holographic will is not subject to any other formal condition. The date is sufficiently stated if the day, month and year are reasonably verifiable from information in the will, clarified by extrinsic evidence, if necessary.
  • B. Additions and deletions to the will can only be executed if made by the hand of the testator.

QUESTION: Can my ex and I just agree to child support (without court involvement)?

ANSWER: Yes, but with two caveats:

  • (1) Your child support agreement must be reduced to a court order or “consent decree”, so that it can be enforced if necessary.

AND

  • (2) Your agreement must follow legal guidelines for child support.

Separated parents are encouraged to make their own agreements about how they will raise their children as separated parents. The same is true for alimony. It is common for divorced or separated parents to agree to child support and then turn their agreement into a voluntary court order or consent decree. Once the agreement becomes a court order, the order can be enforced (ie contempt, garnishment, etc.) if the paying parent stops making payments.

However, before the parents can agree on a child support amount, the court must agree that the agreed amount falls within the child support guidelines; or that there is a good reason to deviate from the guidelines. (See Louisiana Revise Statute 9:315 and following).

The Louisiana Supreme Court in Stogner v. Stogner, 739 S.2d 762 (La 1999), refused to validate an agreed amount of child support. The Court held that notwithstanding the freedom of the parties to agree in this way, the parties must remember that their agreements cannot “derogate from the laws adopted for the protection of the public interest”. The. Civ. Item code 7. The Court went on to say that there should be no deviation from the guidelines unless strict application of the guidelines is NOT in the best interests of the child or is unfair to the parties . (See SR 9:135.1B).

Some examples of permitted deviations from child support guidelines may include things such as the paying parent incurring extramarital or familial debt instead of child support; a parent who has extraordinary costs for their health coverage, a parent who is experiencing financial difficulties beyond their control, etc.

Copyright 2022 KPLC. All rights reserved.


Source link