WillsAre Codicils Advisable?

A codicil is a legal document used to make amendments to an existing will without the need to draft a completely new will. Codicils can be used to add, alter, or revoke specific provisions in a will, and there is no statutory limit to the number of codicils a testator may execute. However, the use of codicils requires careful consideration due to the risks and complexities involved.

When Are Codicils Appropriate?

Codicils are generally only suitable for minor changes, such as:

• Appointing a new executor or removing an existing one.
• Adding or removing a specific legacy or beneficiary.
• Making small adjustments to funeral wishes or administrative provisions.

For more substantial changes, such as altering the main distribution of the estate or making multiple amendments, a new will is usually preferable.

Drafting and Execution Requirements

A codicil must:

• Clearly reference the original will (and any previous codicils).
• Specify the precise changes being made.
• Confirm that all other provisions of the will remain unchanged, unless expressly amended.

Codicils must be executed with the same formalities as a will: they must be signed by the testator in the presence of two independent witnesses, who must also sign. The witnesses do not need to be the same as those for the original will.

Risks Associated with Codicils

While codicils can be convenient, they present several risks.

As separate documents, codicils can be lost, misplaced, or separated from the original will. If a codicil is not found at probate, its amendments may not be recognised, potentially leading to unintended distributions.

Multiple codicils can  cause confusion, making it difficult for executors and beneficiaries to interpret the testator’s intentions and for trustees to potentially misunderstand their powers or limitations of a will-trust. This can increase the risk of disputes or litigation.

Both the will and any codicils become public documents after probate. If a codicil removes a beneficiary or alters a significant gift, the original will’s contents may be revealed, potentially encouraging claims against the estate.

Any failure to comply with the strict execution requirements can render a codicil invalid.

Drafting a codicil to a will that you have not originally drafted also adds additional liability concerns; as the drafter of the codicil also assumes liability for the entire will, not just the codicil.

WillPack’s Approach to Codicils

At WillPack, we do not draft codicils due to the risks associated with them. We always recommend the creation of a new will.

If WillPack created the original will, rewriting the will is, in most cases, a straightforward process as we have existing files that we can amend. A codicil, however, is an entirely new document and one that requires great precision.

If WillPack did not prepare the previous will, we will always require the creation of a new will, as we are not willing to accept liability for a will we did not draft.

Conclusion

While codicils remain a valid legal tool for amending wills, their use should be limited to minor changes. For most amendments, especially those involving significant alterations or multiple changes, drafting a new will is the safer and clearer option for both clients and practitioners.

 

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