Codicil to a will – making minor changes to a will

What is a codicil to a will?

A codicil is a short, additional document typically one or two pages 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 then 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 and means 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.   

Contents:

There are no prescribed or standard forms for a codicil. Everyone’s situation is different.

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 as set out in the trust deed and seek legal advice to ensure compliance with all applicable law especially tax law.

When is a codicil used?

Codicils are typically used to make minor changes to an existing will. For example:

  • Changing an  executor or appointing another one.  An executor may have died, become incapacitated or declared they don’t want to take on the role when the time comes.
  • Appointing an executor specifically to manage your online footprint and digital “assets”.
  • Make a specific gift (adding a legacy) to a named individual or deleting it.
  • Explaining, updating something in the will in a particular clause. 
  • Changing who is to inherit an item of property.
  • Adding instructions for what is to be done with a pet, if recently acquired, or updating  arrangements. Consider leaving a Pet Profile for your executors as such a document can be very helpful at a stressful time. 
  • Revoking (cancel) a whole will or part of a will.
  • Reviving an earlier revoked will.

Outline or structure of a codicil

A codicil document typically contains:

  • The details of the person making the codicil;
  • Whether it is the first, second or more codicil being made.  But note that too many codicils can confuse things and legal advice should be sought on making a new will;
  • Cross-reference to the will being amended. Ensure that the correct date of the will to be amended is entered correctly. This becomes critical where more than one will exists to avoid confusion over what was intended.   
  • Correct references must be made to identify the clause/s in the will being altered and set out the change to be made as appropriate so that all details are clear and correct;
  • A statement about confirming the will in all other respects; and an
  • Attestation clause.

The legal meaning of “will” includes a codicil

A codicil, together with the will and any other unrevoked testamentary dispositions – all such testamentary documents collectively form a person’s “will”. Under the respective wills and succession legislation the meaning of “will” is defined to include a codicil.  For example see section 3; “Definitions” of the Succession Act 2006 (NSW).  

Making a valid codicil – and how must they be signed and witnessed

As noted above the law defines a will to include a codicil and any testamentary disposition.  So making a valid codicil at law means following the same legal requirements as to make a valid will.   Similarly the law requires that a codicil be signed in front of witnesses in the same way as that a will is executed in order to be legally valid.  

Storing a codicil

A codicil should be stored with the will to which it relates in a safe and secure place.  And remember to tell your executors where it is. 

Codicils and probate applications

When applying for a grant of probate, the original will and all original codicil documents must be submitted to the Probate Registry (or Probate Division) of the Supreme Court by the executor.  Delay in obtaining probate will occur (and at extra time and expense) if the original codicil has been  lost or is missing. 

If an original codicil to a will cannot be located it may be possible to lodge a copy of it if available in limited circumstances but it will be subject to the scrutiny of the court.  Legal advice is essential.

DIY Codicils

As said above, a codicil should only be used for very minor alterations to a will.  It might be tempting to do this yourself but before going ahead consider the costs to your beneficiaries and executors if a mistake is made – compared to the lesser cost of having it prepared professionally.

Problems with codicils

Some examples:

  • Mistakes with dates – writing the wrong date of the will being amended on the codicil. 
  • No date written – either on the codicil or the date of the will being changed.
  • Choice of words in the amending clause proves confusing leading to uncertainty as to what the deceased intended.
  • Loss of the original codicil document – it becomes separated from the will,   overlooked or forgotten.  Being a separate document made at a different time, and often place increases the risk of a codicil become misplaced from the will to which it relates.  It is important to keep all testamentary documents together in a safe and secure place.  

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.

Revoking part of a will by a 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. 

When things went wrong:

Case example – a valid will and an informal, undated, unsigned ‘homemade’ codicil 

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 but some time ago had made a valid will which was properly executed.

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

Wills and succession legislation gives the Court wide discretionary powers to dispense with the requirements for execution and alteration of wills in certain circumstances. For example s 8 of the Succession Act 2006 (NSW)

From the evidence the Court was satisfied that the deceased intended the handwritten notes to constitute an informal codicil, and ruled that both the will and the codicil be admitted to probate.1 

But not every informal codicil is admitted to probate.2

In a different situation the Court held 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).2

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

Codicil to an existing will or make a new will?

A codicil can be a quick and cost-effective way to make a minor change to a will. But unless the changes are relatively simple, straightforward and done correctly, more often than not, it is preferable to make a new will. More so if the will was made a long time ago and circumstances, relationships have changed.

The choice is best made in conjunction with specific legal advice, as lawyers tend to prefer that a new will is made so as to reduce the risk of any inconsistencies and difficulties with interpreting what the deceased intended later on.  If court proceedings are required to resolve issues the cost of this can far outweigh the cost of legal advice to draft a new will in the first place.

 

 


1. 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

 

B Stead
BHS Legal
Updated 8 October 2020.

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

© BHS Legal

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Sunset, Ubirr, Northern Territory, Image: B Stead