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, using codicils requires careful consideration due to the risks and complexities involved.
Codicils are generally only suitable for minor changes, such as:
For more substantial changes, such as altering the main distribution of the estate or making multiple amendments, a new will is usually preferable.
A codicil must:
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 identical to those for the original will.
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 also adds additional liability concerns, as the drafter of the codicil also assumes liability for the entire will, not just the codicil.
We do not draft codicils due to the risks associated with them. We always recommend the creation of a new will. A codicil is an entirely new document requiring great precision. If we 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.
While codicils remain a valid legal tool for amending wills, they should be limited to minor changes and only by skilled professionals. For amendments, especially those involving significant alterations or multiple changes, drafting a new will is the safer and clearer option.
Written with thanks to Chris Rattigan-Smith
