Using a Codicil

A codicil is a relatively straightforward document that requires signing and witnessing in the same way as a will. It allows you to make amendments to an existing will document rather than completely re-writing it.

 

There are no rules stating what you can change using a codicil. It can be anything from a single word or phrase, to many different sections. 

 

But it is a good idea to only use a codicil for very small change, as they can make sorting out your affairs more complex when you die. 

 

You don’t need to use the same witnesses as you used in your original will, but a codicil needs to be signed and witnessed as well.

 

Do not use someone as a witness if they or their partner/spouse benefits from a gift in the codicil document. This will make the gift invalid.

 

Things to note:

  • Adding a codicil is usually cheaper than writing a new will if you’re using a will writing service or lawyer.

  • The codicil document must be kept with your original will as they can get lost and raise questions about the existing will.

  • If you are changing numerous parts of your will, it’s better to write a new one.

What Is A Codicil?

This is a simple document utilized in order to make amendments to a current will. A codicil exists in order to ensure that a will is not redone completely in the event that it needs to be updated. It does however, need to be signed by the creator and witness (though you can used different witnesses) just like a will does.

A codicil allows for the creator to amend anything in the existing will from a word in the will, the name of a beneficiary to an entire portion of the will. It is however strongly advised that a codicil be utilized for minor changes in order to ensure that managing your estate after your passing away is easy.

How does a codicil work?

It works by altering the contents of a will. Separate from a last will and testament, a codicil can only come into effect when attached to the will that it serves to alter.

The core elements of a will

A last will and testament is a set of final wishes dictated by a deceased person during the time that he/she was alive. The said wishes are what a person desires to happen to his/her offspring and belongings that they leave behind. This same document also outlines the one who will become the executor of the deceased person’s property. There are a number of requirements that a testator (will creator) needs to adhere to such as furnishing it with his/her signature, that of witnesses as well as having it notarized (where required). It is only after the death of a testator that a will can come into use and executed through a probate court of that particular area.

Attaching a codicil to your will

A codicil can only be used by the testator after a will has been created for the purpose of altering the contents of the will. Upon the death of the testator, a codicil attached to a will needs to be used in the same manner with which a will can be used and only after it has been submitted to the local probate court.

The other way of altering a will is to draft a new one altogether. Given modern technological conveniences, this option may prove the better option when compared to a codicil since codicils are out-dated. The pros and cons of each method will be dealt with in detail below.

Example of a codicil

If Andrew drafts a will leaving his belongings to his wife Mary, he may nominate Willow, Mary’s sister as a contingent beneficiary can be listed by Andrew in his will as an alternative if Mary dies before Andrew does. Should Andrew have a change of heart and decide that his brother Benjamin be the contingent beneficiary instead on Willow, he would need to make that alteration in the will. This is where a codicil comes in. It will state that Benjamin will become the contingent beneficiary and no longer Willow.

Andrew’s last will and testament will primarily remain unchanged except for the part where Benjamin is named as Mary’s contingent beneficiary. Once the codicil is sign as per the requirements of his state, Andrew will then need to attach it to his will as they both will be used by the probate court when Andrew dies.

A codicil vs a new will

Using a codicil to update a will

It is advisable to not use a codicil when altering your will as this may lead to discrepancies and opposing legal terms. It may be difficult for the courts to ascertain whether the codicil’s purpose is to serve as an addition to the will or rectify it. And if its purpose is to rectify something in the will, the court may battle in determining whether the portion that is being rectified should be replaced and if so, with what? This could lead to an adverse outcome for the beneficiaries or the courts deeming it null.

Kennedy for example can write it in his will that his friends Sean should inherit all of his property and that the contingent beneficiaries should be Sean’s children should he (Sean) die before Kennedy. Should he have a change of heart and decide to leave his property to Oscar, another friend of his, and not Sean, Kennedy will create a codicil stating this alteration on his will.

If however, Oscar predeceases Kennedy who they inherits the property between Oscar’s children and Sean’s? Due to the fact that Kennedy’s codicil left this particular scenario out, the rightful inheritance of his property will be decided by the court. There are other more complex instances however, but this serves to show the manner of issues brought about by codicils.

Replacing an old will with a new one

  • There are a number of advantages to creating a new will to replace an old one (be it due to minor or major alterations):

  • With a will, you have all your desires in one document. Confusion may arise that may result in your wishes not being met with a piecemeal plan where you have both a will and a codicil. Write a will over again lessens the number of documents detailing all your wishes to just one.

  • Another advantage is that tracking is made easier when you have one will as opposed to an accompanying document such as a codicil. The onus is on the testator to ensure that when the time comes (after he/she dies) both documents will be presented to the probate court. One document will help circumvent the possibility of parts of your wishes being omitted. Having said that though, a will and codicil works in the same way provided that you follow all the legal requirements, you are better off drafting a new will.

  • Lastly, due to advancements in technology providing virtual tools to help one create a will, such a task has become simple to carry out. Codicils were a more appropriate option in the past when typewriters were used to type out wills after having written the down by hand. Added to this, one needs not consult an estate planning attorney anymore in order to create a will. This can be done by you as and when you wish to do so. It is important to ensure that you revoke any previously existing will using a revocation form in order to have your will deemed valid. Such can also be found in a virtual will creation tool. To further ensure that no confusion arises, it is important to have any old will permanently destroyed, meaning that all copies of it must be destroyed along with the original will.

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