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Codicil to a will – making minor changes

What is a codicil?

A codicil is a short additional document to a will, one or two pages long.  It is used to make minor changes 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 it 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. 

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.  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 to which it relates 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

It 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:

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

Some time ago the deceased had made a valid will with the assistance of his long-time solicitor.  It was properly executed. After he died family discovered handwritten notes in a notebook of a testamentary nature on his dining room table. It had not been hidden away.  At that time he was living alone.

These handwritten notes were undated and unsigned. The notebook was described as being an informal codicil to the will. The problem was what did the deceased intend these notes to be. They contained no definite words as to whether he intended they were to be a will or a codicil. The notes contained various statements about gifts to his children.   Previously he had foreshadowed to his solicitor (and also his executor) that he was thinking of changing his will.  The executor applied to the Supreme Court for probate of the formal will together with the informal document as a codicil to that will.   

The Court found that the informal document was more than list of gifts to family or draft. The formal language of will-making used by the deceased in addressing particular beneficiaries among other facts were evidence the Court said 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

But not every informal codicil is admitted to probate

In a different situation the Court held that the executor had failed to establish that a codicil made by the deceased had been executed according to law, in this instance 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.

Dispensing with the legal requirements for execution 

Wills and succession legislation provides the court with wide discretionary powers on a range of matters.  One such power is to dispense with the formal statutory requirement for the signing of a will or codicil in some circumstances, after rigorous examination of the evidence by the court and so avoid an intestacy.  In New South Wales this dispensing power is provided for under s 8 of the Succession Act 2006 (NSW)

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 or 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.

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.

 

1. Steggall v Quartermain [2009] NSWSC 553
2. For example Neil Ronald Telfer as Executor for the Estate of the late L Telfer v C Telfer [2013]  NSWSC 412

B Stead
BHS Legal Updated 8 August 2021

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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Codicil, Sunset from Ubirr, Northern Territory, sunset, codicils, will making, amending wills, succession law, inheritance law,
Sunset from Urbirr, Kakadu National Park, Northern Territory, B Stead 2014.