A codicil is a short, additional document used to make minor changes, amendments or alterations to an existing will. To be legally valid the codicil document must be signed and executed in front of witnesses in the same way as for a will. Once completed the codicil is kept with that will. More than one codicil may be made. Unless the change is minor and straightforward it is preferable to make a new will.
‘Codicil’ comes from Latin meaning a letter or note. It was also referred to as a ‘little book’ in 17th century England. But the idea of making a testamentary addition began in the ancient Roman civil law. Later in early English law it started being used in situations where a testator didn’t have time to make a proper solemnised will and testament.
Together with the will document a codicil also being a testamentary document only operates when you die.
Codicil to an existing will or make a new will?
A codicil can be a cost-effective way to make a minor change to a will. such as substituting an executor. However if the will was made a long time ago, it may be best to make a new will altogether so there is no inconsistencies. Lawyers tend to prefer that a new will is made so as to avoid potential difficulties down the track with interpretation and the extra costs and delay that arise in resolving them. Seek professional advice.
This article looks at:
What is a codicil?
Making a legally valid codicil
Codicils must refer to the date on the correct will
Interpreters provide valuable services. Non-English speaking people or people who don’t have English as a first language may need the services of an interpreter or translator to help them understand in their language aspects of the will-making process. More →
Storing a will for safekeeping
Wills are important private and confidential documents which take legal effect on the death of its maker. An original will should be stored in a safe and secure place after being signed and witnessed. Ideally the place should be fireproof, and protected from tampering or destruction.
Willmakers should consider their personal circumstances, family and other relationships when considering storage options. In some situations storing a will at home is not advisable if it is likely persons adverse to what it contains can access it.
And make sure you inform your nominated executors or legal personal representatives of your original documents.
Pets and companion animals are important parts of our lives and family. Legally a pet is regarded as property, not a ‘person’ (although we might think of them that way!), belonging to their owner. Being property means that a pet cannot hold title to property and so cannot take a direct gift of money as a beneficiary under a will.
As owners, it is important to consider options for their care should you become unable to continue and for when you die.
Expressing your wishes as to what you would like done and documenting a plan for their welfare is helpful to family, friends and your executors. Make sure you let them know.
Updating a will might seem a troublesome chore, but circumstances can change from the time it was made. The changes might produce unintended and unwanted outcomes in the event of death. Therefore reviewing a will is important to keep its contents in line with intentions.
Regularly reviewing your will every few years or so, in light of changes in your life, is worth doing, as life events and matters such as those outlined below can affect a will. Everyone’s situation is different so in all cases seek professional legal advice from a solicitor providing services in this area.
A family tree is a record of information about family relationships. It is useful to have a basic outline of close family/next of kin relationships to keep with your personal papers. This maybe unnecessary you might think.
However a family tree can be helpful in preparing to make a will, especially where large, complex estates, blended families and business succession issues are involved. More →
Dying without leaving a will, or leaving an invalid one, is to die intestate. Dying intestate means property left (the estate) is distributed according to the intestacy law. The intestacy law has been prescribed by legislation as the ‘default’ rules to apply in these circumstances. The problem is that the intestacy formula for distribution may not produce the desired outcome.
Joint tenancy and tenancy in common give different outcomes when an owner dies
Joint tenancy and tenancy in common are ways of owning property with others. Each works differently when an owner dies, see graphic below. This impacts who will inherit the deceased owner’s share. These graphics seek to highlight how each tenancy works.
In a joint tenancy, when one owner dies, the surviving one automatically owns the whole property. This happens independently of any will (and probate) because of the right of survivorship attaching to this tenancy type.
A will is a legal document, often referred to by lawyers as an ‘instrument’, setting out what a person intends to have happen to their property, (real and personal), and other matters, when they die. It is the legal way to record a person’s instructions and wishes on how they want their property distributed on the event of their death, and who is to responsible for carrying out those wishes. Because it is to take effect only on death, a will is referred to as being ‘testamentary’. A testamentary document or instrument is one which its writer intends, at the time of writing it, to come into effect when they die, and not before. More →
What property can be given or disposed of by will?
Generally all property (real and personal property) to which a person is entitled at the time they die can be disposed of or given away in a will. This is provided for by state and territory wills and succession statutes. More →
Per stirpes and per capita distribution of a deceased estate
Per stirpes and per capitaare Latin terms referring to the ways in which a person’s estate can be distributed among their descendants, their children, grandchildren and so on. A person’s descendants are often referred to as “issue” in succession and inheritance law. As the term ‘issue’ refers to more family than just ‘children’ this can lead to confusion when interpreting what a will-maker intended. For more see this article on using the words “issue” and “children” in wills.
Per stirpes and per capita are different ways of distributing property among a group or class of people, either under a will or when there isn’t one. They address the situation where one or more family descendants of a person have predeceased them. Per stirpes means ‘by the stocks, roots or branch” and per capita means ‘by the head’, by each individual person in equal shares. More →
“Issue” is a legal word often used in wills regarding estate distribution
Key Points:“Issue” is a legal term meaning all of a person’s lineal descendants, including but not limited to their children. This difference is important in interpreting distribution and substitution clauses in wills. Take care when using the words “children” and “issue” in a will and seek professional advice.
Language can be confusing. Words like ‘issue’ and ‘children’, may be thought of in one way by some, but be interpreted differently by others, see graphic. They have the potential to generate different interpretations and outcomes. The problems may not arise until later, leaving the question what did the deceased really mean? This article is about the meaning of issue in wills. More →
Many people own property with another person in a co-ownership arrangement. Spouses or partners typically own their residence together in joint names, family members; or friends may own a property together for investment.
An important issue to consider upfront when buying property are the consequences of when a co-owner dies. How the property is owned between people, that is, its tenancy, can give very different outcomes on death. Ideally these should be considered at the time of purchase.
Questions to ask include who can take a co-owner’s interest when they die? Would this be what they want to have happen? If not, can they state their intention in their will? Or is the property owned in a way that on death the interest automatically passes to the survivor/s outside of a will, as in joint tenancy? This article looks at tenancy issues. More →
Disposing property – what can be disposed of by a will and what can’t – property ownership and control issues
Only personally owned property may be dealt with by a will.
Disposing property by will, in the will-making process requires considerations to be given to what you own in your individual name, as opposed to what you might control, see further below. As only property owned in a personal or individual name can form a deceased estate, it is only this which can be transferred by will, (or the rules of intestacy).
Other property may be owned in the name of a company or trust. In these entities an individual may have controlthrough shareholdings or a power of appointment. When it comes to making a will, it is important to remember that such assets won’t form part of a person’s deceased estate and therefore cannot be disposed by their will. See the table below for examples of what are estate (disposable by will) and non-estate assets. Making a list of property, money and things to be disposed of and who owns what is important. More →