Codicils – What are they and why don’t we draft them?

By April 6, 2018Drafting
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A codicil is a document which is used to add to, alter or revoke parts of an existing Will. A codicil may even amend a previously existing codicil and there are no limits as to how many codicils a person could have.

A codicil should mention what changes are being made, reference the Will and any earlier codicils by date and what amendments those previous codicils made and confirm the remaining terms of the Will.

Codicils are subject to the same requirements of a Will and should therefore be signed and witnessed in the same manner as a Will. The witnesses however do not need to be the same as those from the original Will.

WillPack will not prepare codicils to Wills and we instead recommend that changes be made by rewriting the Will and issuing a new Will. There are several reasons behind this.

As codicils are separate documents they can be easily lost, misplaced or accidentally destroyed by either the Testator themselves or by Executors or family members after death. If a codicil is lost, the original Will could easily be submitted to probate without anyone knowing that there should be a codicil with that Will.

Both the Will and any codicils would become public documents after probate has been completed. If a codicil has amended a gift or removed a beneficiary entirely, allowing the full contents of the Will, showing what a beneficiary could have inherited, could increase the chances of that beneficiary bringing litigation against the estate.

It is easier for the executors to fully understand how the estate is to be distributed, if all distributions are made by one document rather than spread out over multiple different documents. Similarly, it is easier for a trustee to administer any Will-based trusts if the trust’s terms are only in one document.

Rewriting the Will is a much simpler process than making a codicil. We already have existing files that we can amend when rewriting the Will. A codicil however is an entirely new document and one that requires much preciseness. As rewriting the Will is a simpler process, writing a codicil would be a higher charge than rewriting the Will.

There are also further issues relating to Wills not originally drafted by us. Should we draft a codicil to a Will that we did not originally draft, the act of making that codicil would mean that we would be accepting liability for the whole Will and not just the codicil. We are not willing to accept liability for Wills not previously drafted by us.

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