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Q: After my father died, we found his Last Will and Testament. He had handwritten on it, next to Article III, “Beginning 10-18-2014, do NOT honor Article III” and signed his name. By Article III, he had, before this handwritten note, left his house to my brother. In Article IV, he left everything else to me. Does the handwritten note mean that everything else now includes the house and I get it rather than my brother?

A: Maybe. Since the added sentence is all in your father’s handwriting and signed by him, that might be in legal terms considered a “holographic codicil.” But, to operate as a valid amendment to Article III, that sentence itself must evidence that your father had the intent at the time he wrote “Beginning 10-18-2014, do NOT honor Article III” for it to take effect only at the time of his death. If your brother disputes that is what your father meant, then you would need to convince a court that your father’s intentions when he wrote that was for it to not take effect until he died. That would involve the time, costs and uncertainty that trials involve until the court makes a decision.

The court would be faced with trying to decide why your father meant when he began that handwritten sentence with “Beginning 10-18-2014,…”. Courts try to figure out what your father meant. It was his house, after all. When faced with wording like that, the supreme court of another state ruled that it would have been clear had the handwritten change read: “Do NOT honor Article III. 10-18-2014.” and been signed. It is the word “beginning” that makes it unclear when your father meant that Article III should not be honored.

Did he mean that Article III should not be honored “beginning 10-18-2014” as it reads, literally? If so, that handwritten sentence would not be considered a valid amendment. Article III of his will would therefore mean that the house goes to your brother.

Or, was that just some way your father was indicating he wrote the sentence and signed it, intending since it was written on his will that the handwritten sentence would only take effect when he died?

Your father is no longer here, to tell the court. The court must, instead, try to determine what he meant. That can be sort of like trying to “read tea leaves.” Unless convinced that your father meant for Article III not to be applied after he died, the court will likely disregard that sentence as if it had never been written.

Writing later on a professionally drafted will to change or explain it or for any other reason often “backfires.” Writing on a will might invalidate it. When planning your estate, make sure you have the help of a knowledgeable professional.

John Simmons is an attorney practicing in Idaho Falls. This column is provided by the 7th District Bar Association as a public service. Submit questions to “It’s the Law,” P.O. Box 50130, Idaho Falls, ID 83405, or by email to rfarnam@holdenlegal.com. This column is for general information. Readers with specific legal questions should consult an attorney. A lawyer referral service is provided by calling the Idaho State Bar Association in Boise at (208) 334-4500.

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