A codicil is a legal document that changes specific provisions of a last will and testament but leaves all the other provisions the same. You can modify, update, or even completely revoke your last will and testament at any time as long as you're mentally competent.
The Codicil cross-refers to the original Will and gives details of the amendments or additions you want to make to it. The Codicil must then be executed in the same way as for the Will i.e. Signed with two witnesses (although the witnesses do not need to be the same people as the witnesses on the Will). Like we said earlier, a codicil will be required when any changes need to be made to an existing will. The reasons for modifying the Will can vary, but the legal procedure to do so will always involve adding a codicil, which functions, essentially, as a legal amendment to an existing will.
A Codicil to Will, or Codicil, is a written document altering, amending, explaining, revoking, or adding to a previously executed Last Will and Testament, or Last Will. A Codicil is needed to reflect any important changes in your life and the impact they have on the dispositions and arrangements after your death you had previously made in a properly executed Last Will.
A Codicil should be used for minor changes and alterations to your original will. It should not substantially change the meaning of the original will or affect the overall purpose of the original will.
Here are some ways it can be used:
If the changes required are drastic, you may choose to make a new will instead of using a codicil to will to make alterations.
You should keep in mind that if you are substantially altering your Last Will, you are better off revoking it and drafting a new will rather than using a Codicil. The more complicated a Codicil, the higher likelihood of future disputes and unenforceability. The original will and each Codicil needs to be proven to be true and authentic statements of your wishes during the probate process, which can create unnecessary confusion and aggravation for your loved ones.
A Codicil to a Will can vary in length. It could be 8 pages, 4 paragraphs, 2 sentences, or even a single word or deletion.
A Codicil should not be used when (1) the changes are inherently different from the heart or nature of the distributions of the original will (2) all or most of the gifts have been destroyed or sold, (3) the testator divorces, marries, or has a falling out with a beneficiary (4) a new child is born or adopted, (5) the testator undergoes a large change in financial status, or (5) it will create any uncertainty or ambiguities.
A Codicil also requires that the testator abides by the same formal execution requirements as a will, so the process is not any simpler than creating a new will. Therefore, unless you are making very minor changes, creating a new will may be advisable in most situations.
Note, that although a Codicil is a separate legal document from your Last Will, it must be stored and kept with your Last Will for it to be legally enforceable.
Life is ever-changing and unpredictable, and sometimes the circumstances in your life change enough to warrant a revision to your Last Will. However, if you want to make a change, you can’t simply just cross out the unwanted provisions and write in new ones. Without a Codicil, you will be unable to have your Last Will reflect the changes in your life, thus leaving nothing or the wrong items to loved ones or even the wrong people.
Sometimes, certain gifts left to beneficiaries are no longer in the state or are substantially changed and therefore fail or are adeemed. In general, ademption occurs in two forms: ademption by extinction and ademption by satisfaction.
Circumstances such as ademption or other mistakes may leave openings for family members to contest other parts of your Last Will. A Codicil allows you to make minor changes or correct small mistakes, without the time and expense of having to draft a whole new will.
Here is a chart of possible consequences a Codicil could help prevent for a testator and beneficiaries of the will:
|Your recent ex-spouse administering your estate and assets||An incompetent or prejudiced executor improperly carry out the testator’s wishes|
|Having a guardian who is deceased still be the named guardian for your children or loved ones||Living with a guardian who the testator did not appoint to care for you|
|Gifting an asset(s) that no longer exists at the time of your death||Not receiving a gift because the gift doesn’t exist at the time of the testator’s death|
|Gifting an asset(s) that can be interpreted to have different meanings||Not receiving a gift because the testator didn’t specify the asset and their charitable intent|
|Failing to have your will reflect the changing circumstances of your life and charitable intent||Not being provided for because the testator’s charitable intent could not be ascertained|
|Confusion and fighting amongst family members as to who receives what||Confusion and aggravation from having a court interpret the will|
A codicil is a legal document that is used to make changes to an existing last will and testament.
A codicil changes the terms of a will. While a codicil is its own separate document, it only works when paired together with an existing will.
A will (formally called a “last will and testament”) is a legal document. It states a person’s wishes for her property and minor children (if any) for after death. It’s also where one names a personal representative to be in charge of settling your affairs. A person who creates a will (called a “testator”) must sign the will according to specific legal requirements, usually involving witnesses and a notary. A will takes effect only after the testator passes away and the will is submitted to the local probate court.
Once there’s a will in place, a codicil can be used by the testator to change that will. The codicil must be executed according to the same requirements as the will itself and, after the testator’s death, must be submitted to the local probate court along with the will itself. Of course, another method for changing a will is simply to make a new one. With modern developments in technology and software, making a new will is usually the better choice given that codicils were created in a time when rewriting or re-typing an entire will was not feasible. The advantages of making a new will versus a codicil will be discussed further below.
Imagine Arthur creates a will. In his will, he leaves all of his property to his wife, Wendy. As a backup plan, his will says that if Wendy dies before him, his sister, Sally, should get everything. A few years later, Arthur changes his mind. He decides that if Wendy predeceases him, he’d rather his brother Bernard get everything — not his sister Sally. So, Arthur needs to change his will.
Enter the codicil. To replace Sally with Bernard , Arthur could draft a codicil. The codicil would provide that Bernard, not Sally, should receive everything as a backup to Wendy. The result: Everything else in Arthur’s will stays the same, but now Bernard will be the backup instead of Sally. Upon signing his codicil according to his state’s requirements, Arthur would need to make sure to store the codicil together with the will as they would both need to be admitted to probate when the time comes to distribute the assets in his estate.
In general, it is not a good idea to change your will with a codicil. Using a codicil can result in confusing, inconsistent, or conflicting legal terms. The court may struggle to determine: Is the codicil meant to simply be an addition, or is it supposed to negate something in the original will? If it’s negating something, should that something be replaced, and with what? This could have unintended consequences, or render an important provision—or even the whole will—invalid.
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For example, let’s say Ken has a last will and testament in which he states that upon his passing all property should go to his friend, Sam; and if Sam is not alive, the property should pass to Sam’s children. Ken later changes his mind and wants his property to go to his other friend, Otto, instead of Sam. So Ken executes a codicil stating that in his will Otto should replace Sam as the beneficiary of his property.
However, if Otto passes away before Ken who should receive the property? Is it Otto’s children or Sam’s children? Because Ken’s codicil did not address this issue specifically, this decision would be left up to the court. Of course, this is a simplified example, but it illustrates the kind of issue that arises with codicils.
Whether making minor changes or major changes, creating a new will has several advantages over using a codicil: