Codicil to a will – what is it and when to use one.

What is a codicil?

A codicil is a short one or two page document used to make a minor change, amendment or alteration to a will.  It is a convenient way to update something in your will which you are otherwise satisfied with or make a small change: see example situations below.

The codicil document must be signed and executed in front of two witnesses in the same way as for a will. It is then kept with that will but not attached to it. There are no prescribed or standard court forms for a codicil. An example outline is shown below. 

More than one codicil to a will may be made.  However this increases the potential for confusion.  Unless the change is straightforward, typically one or two paragraphs and the will is relatively recent it is preferable to make a new will. 

Contents:

The details of the person making the codicil;

• When is a codicil used?
• Structure of a codicil – an outline
• Making a valid codicil
• Problems with codicils
• Codicil or new will?

When is a codicil used?

As said above codicils are used to make minor changes or updates to an existing will.  It is like an addendum to a will. It can be used for various situations, for example:

1. Changing and appointing executors

• Appointing an executor.  An executor may have died, become incapacitated or declared they don’t want to act. 
• Appointing a substitute executor.  If you haven’t done so in your will you may wish to nominate another person in case your first choice wants to resign or is no longer around when the time comes. 
• Appointing another executor for a specific purpose.  For example a professional adviser you trust to look after your business affairs.  Or someone to attend to your digital ‘assets’ and online footprint.

2. Changes to beneficiaries and/or gifts

• Updating a will when a beneficiary has died.  For example an adult child has died leaving leaving children (your grandchildren and descendants).  Who inherits that child’s share if this situation has not been covered in the will with an alternative? 
• Changing who is to inherit an item of property.
• Making a specific gift (adding a legacy for example) to a named individual, or class.  Or deleting a gift. 
• Clarifying or updating something in a particular clause of the will. For example whether ‘grandchildren’ is to include step-grandchildren or not. Or the meaning of particular words.
• Changing who the residue of your estate is left to.

3. Cancelling (revoking) or re-instating an existing will or part of one

• Revoking (cancel) a whole will made some time ago before your last will for example.
• Revoking or cancelling part of a will.  
• Reviving an earlier revoked will.

Utmost care is needed when using revocation clauses in codicils so as to not inadvertently revoke (that is cancel) the will being altered, changed or updated.  This is why lawyers prefer that a whole new will is made. 

4. Pets

• 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.

Outline or structure of a codicil

An example of a codicil form is shown to indicate what a codicil document may look like. It usually has a cover sheet.  Note, this is a sample only. 

A codicil document typically contains:

• The details of the person making the codicil;
• Whether it is the first, second or more codicil being made.  A word of caution with too many codicils as they can lead to confusion for executors.  Seek legal advice and make a new will rather than risk problems later.
• A cross-reference to the will being amended. Ensure that the correct date of the will being amended is correctly stated.  This is critical where more than one will exists.
• Correct references must be made to identify the clause/s in the will being altered.  Set out the change to be made as appropriate so that all details are clear and correct;
• As said above care is needed with the use of any revocation (cancellation) wording in the codicil to avoid mistakenly revoking the will intended to be changed.  
• A statement confirming the will in all other respects. 
  
• An Attestation clause for signing and execution of the codicil.  This is done in the same way as for a will for validity.  The attestation clause is where the willmaker (testator) signs and the two witnesses.  The details of the witnesses are also added.

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 legally valid codicil – how it must be signed and witnessed

As noted above the law defines a ‘will’ to include a codicil and any testamentary disposition.  Making a legally valid codicil means following the same legal requirements as to make a valid will.  In other words it is a legal requirement that a codicil be signed in front of witnesses in the same way as that for a will in order to be legally valid.  

Storing

It should be stored with the will to which it relates in a safe and secure place.  Being a separate document made at a different time and maybe place there is the potential for it to become separated from the will, lost or forgotten. 

Codicils and probate applications

When applying for a grant of probate, the original will and all original codicil documents are required to 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 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.

When a codicil cannot be used – trust deeds

Note that a codicil is only used for making changes to your will.  To make changes to documents such as trust deeds for example you need to follow the procedures as set out in the trust deed itself.  It is important to seek legal advice to ensure compliance with all applicable law, especially tax law.

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 – if it becomes separated from the will, overlooked or forgotten.  A codicil is a separate document made at a different time and often place. This increases the risk of it becoming misplaced from the will to which it relates.  The Court requires original documents for probate applications so it is important to keep all testamentary documents together in a safe and secure place. 
• Hand written testamentary short documents, in ‘death-bed’ type situations, potentially intended as a codicil to an existing valid, formal will. 

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 revocation of the whole will inadvertently occurs through stating the wrong dates in the codicil or incorrect wording for example.

Reviving an earlier will by using a codicil

Codicils have been used to revive an earlier will.  Again this means it is critical to refer to the correct date on the will being revived.  And ensuring that any other testamentary documents no longer wanted are properly cancelled (revoked).  This approach is not really desirable given the chance for things to go wrong, especially where multiple testamentary documents have been made. 

Time period and capacity issues

If the will was made a long time ago, it may be preferable to make a new will rather than updating it by codicil.  This will depend on individual circumstances and the nature of the change being made.  However where the possibility of a will challenge exists it is worth being aware that such a challenge could question capacity at the time the codicil was made.  Whether the deceased had the required legal capacity and testamentary intentions and were acting freely at the time.  Or were they being influenced or pressured in some way. 

Other concerns might be if the terms of a codicil are materially different to that of the existing will, especially where the will was relatively recent.  The court has to be satisfied that a will maker knew and approved of any codicil to their will; that they intended to make such a document.  When suspicions are raised the cases show that the court won’t necessarily admit the document to probate.

Do-it-yourself (DIY) Codicils

As said above a codicil should only be used for minor alterations to a will.  It might be tempting to do this yourself it not being a requirement to use a lawyer.  Before going ahead consider the potential costs to your beneficiaries and executors if a mistake is made.  The cost of rectifying this in court time can far outweigh the costs of having a codicil prepared professionally. Of course there may be urgent situations when there is no time to seek legal services.

When things can go wrong with doing your own

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

The deceased had made a valid will some time ago with the assistance of his long-time solicitor.  It was properly executed. He had been living alone and after he died the family discovered handwritten notes of a testamentary nature in a notebook left on his dining room table.  The notes were undated and unsigned.

The problem was no one knew what he intended these notes to be.  A will or an addendum to his will- a codicil?  There were no definite words either way.  The subject matter of the notes were various statements about gifts to his children. Shortly before he died he had foreshadowed to his solicitor (and executor) that he was thinking of changing his will. 

Could handwritten notes be an informal ‘codicil’?

The executor applied to the Supreme Court for probate of the formal, valid will together with the notebook.  The notebook was described as being an informal codicil document to that will.  The Court found that the informal codicil was more than a list of gifts to family in draft form.  Its formal language of will-making used by the deceased in addressing particular beneficiaries together with other facts was evidence the Court said of his intentions the handwritten notes constitute an informal codicil.  Consequently the Court ruled that both the will and the codicil be admitted to probate.¹

Not every informal codicil is admitted to probate

However in a different situation it was 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  

Dispensing with the legal requirements for execution 

Wills and succession legislation provides courts with wide discretionary powers on a range of matters.  For example the power to dispense with the formal statutory requirement for the signing of a will or codicil in some circumstances subject to the court’s discretion.  It requires rigorous examination of the evidence by the court. In New South Wales this dispensing power is provided for under s 8 of the Succession Act 2006 (NSW) but similar provisions exist in the other states and territories.

Codicil to an existing will or make a new will?

Codicils can be convenient and cost-effective

A codicil can be a quick, convenient and cost-effective way to make a minor change or update to an existing will.  Especially where the desired amendment is simple and straightforward.   As with wills there is no requirement that the services of a lawyer be used.  But it is preferable all the same. 

In some situations of illness or accident there may be no time to seek the services of a lawyer to make a legally valid document.  It was these urgent ‘death-bed’ situations which historically led to the development in English law of the codicil, see note below.  Some legal practitioners offer bedside attendances as part of their services  Contact the law society in your state/territory to find one near you.  In addition other law firms offer online will-making in part which may help keep costs down. 

Costs of a codicil vs costs of potential court proceedings to fix a problem

The choice of whether to make a codicil or a new will is best made in conjunction with specific legal advice on your circumstances. If the will was made a long time ago and circumstances or relationships have changed it can be prudent to make a new will.  Lawyers tend to prefer that a new will is made to reduce the risk of inconsistencies and later difficulties with interpreting intentions.  Court proceedings to resolve issues when the willmaker is no longer around are time-consuming and costly.  This cost can far outweigh the cost of legal advice to draft a new will in the first place.

History note

The word ‘codicil’ comes from Latin, meaning a letter or note. 
The idea of making a short addition to a testamentary document, that is a will, began in the ancient Roman civil law. 
Later in early English law it began to be used in situations where a testator didn’t have time to make a proper solemnised will and testament. 
For example in cases where the testator was very ill on their ‘death bed’. 
There are reports of codicils being frequently used in times of plagues in England.  In 17th century England it was referred to as a ‘little book’. 

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 July 2023