The Unconventional Wisdom of Fragmented Wills
A will is typically a single document that is prepared by a testator at one time. Not all wills are typical, though. A will can comprise multiple documents that are prepared at different times during the testator’s life. This scenario occurs when a testator executes an initial will and later executes one or more codicils that amend rather than replace the initial will. In this scenario, multiple documents must be collected at the testator’s death and construed together to obtain a full understanding of the testator’s intended estate plan. This Article refers to these atypical wills, which express the testator’s intent across multiple documents, as fragmented wills. Conventional wisdom within estate planning cautions against fragmented wills. It holds that they are unreliable estate planning tools that frequently embroil decedents’ estates in costly litigation and, therefore, should be avoided. Instead of amending a will through codicils, conventional wisdom urges testators to execute new wills that supplant, rather than supplement, existing wills. This technique produces a singular will that comprehensively evidences the testator’s intent and avoids the perceived pitfalls of fragmented wills.
Conventional wisdom is sometimes wrong, and, in this case, it is. This Article provides a counternarrative for fragmented wills that is supported by an original empirical study of fragmented wills, which were found within a sample of probate estates from Hamilton County, Ohio. The probate records of these estates were reviewed to determine whether they included codicils. If so, various data was collected, including the frequency that codicils appeared in the sample, the types of substantive changes that testators made through codicils, the drafting techniques that testators used in their codicils, and the frequency and types of disputes that arose related to fragmented wills.
This new empirical study tells a different story about fragmented wills. Wills that are accompanied by codicils are not the ineffective estate planning tools that their critics claim them to be. Instead, real-world data reveals them, overall, to be reliable means for testators to communicate their intent. Furthermore, they do not breed litigation or disrupt the efficient administration of probate estates. This counternarrative not only challenges the conventional wisdom but also suggests that change to the law regulating fragmented wills is needed. As such, this Article concludes by proposing reforms that will better align the law of fragmented wills with the overarching policy objective of the law of succession—accurately carrying out a decedent’s intent at an acceptable administrative cost.
