Codicils: what is a codicil, making minor changes to a will

What is a codicil to a will?

A codicil is an additional document used to make minor changes, amendments or alterations to an existing will. The codicil document must be signed in front of witnesses in the same way as for a will, see below. Once completed the codicil is kept with that will.  More than one codicil may be made.

The word ‘codicil’ comes from Latin, meaning a letter or note. Together with the will document, being testamentary documents they only operate when you die.  A codicil is not used for making changes to other documents such as a trust deed for example.  To do that, you need to follow the procedures set out in the trust deed, and seek legal advice.

Examples of a minor change are when you want to change your executor/s or trustee/s, appoint a new one, add a specific gift (legacy) to a particular person or delete it.  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 that arise in resolving them.

Codicil to an existing will or make a new will?

As described above a codicil is a short document which may be used to make a minor change to an existing will.  If the will was made a long time ago, it may be best to make a new will altogether so there is no inconsistencies.  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
  • Revoking part of a will by a codicil
  • Reviving an earlier will by a codicil
  • Meaning of ‘will’ includes a codicil
  • How must codicils be signed?
  • Storing a codicil
  • Potential problems
  • An undated, unsigned ‘homemade’ codicil 

What is a codicil?

As stated above a codicil is a short additional document, typically one or two pages, which can be used to make an alteration to an existing will.   It can be used to revoke (cancel) a whole will, part of a will, to explain something in the will, or to revive an earlier revoked will. 

When someone wishes to alter a part of their will, but is happy with everything else in that will, it is usual to express that by stating in their codicil that they confirming their will in all other respects. 

Just as with making a will, you must have the required capacity.  It must be signed according to the legal formalities required for executing a will to ensure it is valid, and it then becomes part of the will.  Both the will and all codicils must be submitted to the Court when applying for a grant of probate.

When used?

Codicils are typically used to make minor changes to an existing will such as changing an  executor or appointing another one.  A codicil can be used to make specific gifts of personal items to a named individual.  Or adding instructions for what you would like done with your pet if you have recently acquired one, or update it.  A pet plan for your executors can be very helpful at a stressful time.  At the time of writing there are no prescribed or standard forms for a codicil.

Generally, as said above, a codicil should only be used for very minor alterations to a will. Examples of a minor alteration is to appoint another executor, change an executor, or change who is to take a specific item of property.  It might be tempting to do this yourself, but consider the costs to your beneficiaries and executors if there is a mistake, compared to the lesser cost of having it prepared professionally.

Someone gravely ill may have second thoughts over something and wish to make changes to their testamentary intentions as stated in their will. Making a codicil can be a convenient option to facilitate this, where the circumstances are that it is difficult as a practical matter, to obtain legal assistance for a whole new will and complete all the formalities.

While it might seem a straightforward matter to amend an existing will, this belies potential problems, and unless the changes are relatively simple, more often than not, it is preferable to make a new will.  However, seek legal advice for your particular circumstances.

Problems with codicils

Codicils can cause problems, and because of that lawyers often advise it is preferable to make a new will.  Even minor changes can sometimes turn into major problems down the track such as writing the wrong date of the will being amended in the codicil.  If you are unsure whether to amend an existing will with a supplementary document such as a codicil or make a new will altogether, seek legal advice.

Loss of the codicil by becoming separated from the will and overlooked or forgotten.  Being a separate document made at a different time and maybe place to the will it relates to can increase the risk of being misplaced or separated from the will, or simply forgotten about.  It is important to keep all testamentary documents together in a safe and secure place.  

When applying for probate, the executor is required to lodge an affidavit (a written statement sworn or affirmed to be true) in the Supreme Court Probate Registry supplying information to the court.  Depending on the state or territory, this may include stating whether or not the deceased left a codicil to their last will and if so, the date made. Delay in obtaining probate will occur (and extra expense) if the original codicil has been lost or is missing. 

It may be possible to lodge a copy of it, in limited circumstances as with missing wills, but it will be subject to the scrutiny of the court, seek legal advice.

Time period and capacity issues.  If a long time period has elapsed from the time the will was signed to when it was amended by a codicil, questions may arise, depending on the circumstances, as to the underlying reasons, in particular whether  the maker had the required legal capacity and testamentary intentions. 

Questions such as was the person acting freely in making the changes or was there any undue influence?  Other concerns might be if the terms of a codicil are materially different to that of the existing will, especially if the will had been made relatively recently.  The Court has to be satisfied that a will maker knew and approved of any codicil to their will and that they intended to make such a document.  If there is any suspicion raised, the cases show that the Court won’t admit it to probate.

Making a codicil – no standard forms

There are no standard or prescribed forms for making a codicil. The reasons for making a change to a will are many and varied, everyone’s situation being different.

Making a legally valid codicil

For a codicil to be valid it must comply with the legal formalities required for making a valid will.  This means it must be in writing and signed and witnessed in the presence of at least two people in the same way as that for a will.  Then together with the will, and any other unrevoked testamentary dispositions of property, all the documents form a person’s will. This is usually the meaning of “will” given under succession and wills legislation.

The codicil should refer to the date of the will being altered

Wills normally begin with a statement (known as a revocation clause) that the will-maker cancels (or revokes) all previous wills and testamentary acts.

It is most important that the date of the will being amended is correctly stated in the amending codicil document in order to be effective.  Where there is more than one will in existence it can cause confusion as to what was intended if there is no date or the date of an earlier will. If you wish to alter an existing will through the use of an additional document seek legal advice.

Revoking part of a will by a supplementary codicil

Where a codicil is used to cancel (revoke) part of an existing will care is needed to ensure that it is indeed partly revoked as required, and no inadvertent revocation of the whole will takes place via the codicil.

Reviving an earlier will by using a codicil

Codicils have been used to revive an earlier will, which again means that referring to the correct date on the will to be revived is crucial, and ensuring that any other testamentary documents no longer wanted are properly cancelled.  This approach is not really desirable given the chance for things to go wrong.  Situations where multiple wills have been made, and the existence of one or more codicils, are recipes for inadvertent date errors to be made. 

There are reported cases dealing with such complexities.  The last thing anyone wants are expensive court proceedings to resolve the matter.  If possible it is preferable to make a new will altogether so as to avoid misunderstandings.  In the overall scheme of things, any extra costs in making a new will up front would be less than the costs of possible future legal proceedings to the estate to sort out during the probate process.

The legal meaning of a will – it includes a codicil

Generally the wills and succession statutes all define a “will” to include a codicil.  Section 3 “Definitions” of the Succession Act 2006 (NSW) is a typical example.  If a codicil to a will is made, it is important to double check both documents together to ensure the clauses provide for what the will-maker intended, and there is no conflict or omissions.

How must codicils be signed?

witnessing a will, witnesses, attest, sign, make a will, codicil, codicls, additional document to a willA codicil must be signed and witnessed in the same way as that for a will for it to be legally valid.  In other words the procedure to follow for signing a codicil is the same as that for executing a will, set out under the wills and succession legislation in each state and territory. The statutory formalities require the person making a codicil to sign it in the presence of a minimum of two witnesses as prescribed by the relevant statute.  For more information about the legal formalities on executing a will click here; for about witnesses to a will click here.

Storing a codicil

The original codicil made to a will should be stored with the original of that will in a safe and secure place.  And remember to tell your executors where it is.  Read about storing an original will here.

A valid will and an informal, undated, unsigned ‘homemade’ codicil 

In one case a notebook containing handwritten notes, undated and unsigned was found on a table in the deceased’s home.  The judge noted that the notebook had not been hidden away.  The deceased had been living alone.   Some time before the deceased had made a valid will, and formally executed.

The executor applied for probate of the will, together with the handwritten notebook.  This was described as being an informal codicil to the will. The executor sought a declaration from the Court that the informal codicil was really a valid codicil to the will. 

Succession legislation gives the Court powers to dispense with the requirements for execution and alteration of wills in certain circumstances. See section 8 of the Succession Act 2006 (NSW) here.  From the evidence the Court was satisfied that the deceased intended the handwritten notes to constitute an informal codicil.  The Court ruled that both the will and the codicil be admitted to probate.1 

However, not every informal codicil is admitted to probate.2 In a New South Wales case2, the Court said that the executor had not established that a codicil made by the deceased had been executed according to law, that is section 6 of the Succession Act 2006 (NSW).

The Court has wide powers

The Court has wide powers to examine any evidence as it sees fit to discern the testamentary intentions of the deceased.  Each case depends on its own facts and circumstances.  As the Court said in a Victorian case:

“In determining whether the deceased intended the document to have testamentary effect, the court is not restricted to the document itself but may have regard, in addition, to evidence of what the deceased did and said. Evidence of subsequent statements by the deceased is admissible for the purposes of establishing testamentary intention.”3

To avoid any contentions and possible costly challenges later, if it all possible seek assistance from a qualified lawyer in wills and estates who can advise in the circumstances.  Some practitioners offer bedside attendances as part of their services.  Contact the law society in your state/territory to find one.

 


1. Quartermain Estate – Steggall v Quartermain [2009] NSWSC 553
2. For example
Neil Ronald Telfer as Executor for the Estate of the late Lyall Telfer v Carolyn Telfer [2013]   NSWSC 412, Re Stuckey [2014] VSC 221
3. Jageurs v Downing [2015] VSC 432

 

B Stead
BHS Legal
Updated 1 July 2019.

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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