What is a Codicil to a Will?

What is a Codicil to a Will?

You may be lulled into a false sense of security after first making your Will online, thinking of it as something you can just “set and forget’. You’ve got all your ducks in a row and can now bask in the satisfaction of having completed such an important task.

But it’s actually important to think of your Will as a “living” document that can (and should) change as your circumstances change.

In fact, you can update, modify or completely cancel (revoke) your Will at any time.

Getting married or divorced, having children, buying a new property or deciding on a gift or legacy you’d like to leave can all mean that your Will is due for a review.

While some new developments in your life call for a complete overhaul of your Will, others can easily be catered for by making an “add on” to your existing Will. This is where Codicils come in.

So, when should you start from scratch and write a completely new Will and when should you just amend the one you have with a Codicil?

In this post we tell you when and how to write a Codicil to a Will in Australia, and when you may need to rewrite your Will.

What is the purpose of a Codicil?

Codicils exist so you don’t have to go through the entire process of creating a new Will. They give you a chance to make small changes or add in new instructions if circumstances have changed.

Codicils are like a little “P.S.” at the end of your letter, or in this case at the end of your Will.

You’d normally use one when you want to introduce a small change, or add an extra instruction that still works within your overall Will and won’t confuse or cancel out any other parts of the Will.

When do you need a Codicil?

Some situations where you might want to add a Codicil to your Will include:

• Changing or adding an Executor. A Codicil is a simple and effective way of making a change to your Will if your Executor has died or can’t fulfill the role for some reason and you need to appoint a new one. A Codicil can also be used if you want to add a backup Executor.

• Making a specific gift or bequest. You may have a newly acquired item of worth like an antique or a piece of jewellery and you want to gift it to a particular Beneficiary. A Codicil is the perfect way to add new gifts to your Will.

• Clarifying or explaining a point in your original Will. If one of your Beneficiaries changes their name after marrying, for example, a Codicil can be included to confirm their new name and status as a Beneficiary.

When should you rewrite a Will instead of using a Codicil?

It is always wise to seek professional advice when deciding whether to opt for a Codicil or new Will. Generally, where it is easy and practical to do so, a new Will is always helpful whenever you want to make a change.

You might need to make a completely new Will if:

• You go through major relationship changes. If you’ve married, separated or divorced since your original Will was made and you want to add or adjust the Beneficiaries in your Will.
• You become part of a blended family. If you have a new partner and step children and want to make sure your dependents from a former relationship are properly recognised in the Will.
• You want to remove someone that was previously a Beneficiary. This could include a son-in-law or daughter-in-law who is now divorced from your child.
• You’ve set up a new structure for business or estate planning purposes. If you’ve created a company or Trust and shifted assets from your estate as a consequence.
• You’ve already made one or more Codicils to your Will. In this situation you need to decide whether adding another Codicil would create confusion and possible contradiction and whether it’s a better option to start afresh.

How do I write a codicil to my Will?

Writing a codicil is much easier than most people think. It can be written by hand or typed on a computer with or without the help of a legal professional.

When you create a codicil it is important to structure it in such a way that it is obvious it is an official testamentary document. This means spelling it out clearly and concisely. Below is a basic template which can be used as a guide for writing a codicil.

I ______ (full name), of ______ (home address) declare this a codicil to my last Will and testament, which is dated _____ (date the original Will was created). I add or change the last Will (date of the original Will) to include _____ (changes). The document should be marked with the date it is created and should be signed in the presence of two witnesses. The witnesses will need to sign the document as well.

It is also worth including a sentence clarifying the document is simply an ‘add on’ to your original Will.

If you are concerned about the risk of invalidating a Will by creating a codicil on your own you can go through the process with a lawyer, a Public Trustee or an estate planning company.

How do you structure a Codicil?

Although there’s no standard form or template for a Codicil, there are a few basic elements you must include to make sure it is valid.

• Details of the person making the Codicil;
• Details of the original Will the Codicil refers to (including its date);
• The date the Codicil was written;
• Specific reference to the clause(s) in the Will being changed;
• Confirmation that the other clauses of the Will remain effective’
• An “attestation clause” explaining that the Will was made by the Testator and has been properly witnessed.

The Codicil should be signed and witnessed by two people in the same way as a Will and it should be stored with the original Will.

Who can witness a codicil?

To make sure your codicils remain valid your witnesses must be at least 18 years old and have no direct interest in the Will. Beneficiaries or spouses of beneficiaries should not be used as witnesses to codicils as it could invalidate their claims to the Estate.

Codicil by State

Creating a codicil involves the same process for someone living in New South Wales to someone living in Queensland or Victoria. The basic format and legal requirements are all the same but there may be some minor differences required to ensure the document is valid depending on the state or territory legislation. To find out the specifics in your state or territory click through to the links below.

• New South Wales
• Victoria
• Queensland
• The Australian Capital Territory
• South Australia
• Western Australia
• The Northern Territory
• Tasmania

FAQ’s

Is a codicil legally binding?

A codicil is legally binding if it has been written correctly. It must reference the original Will and the date it was made, and include the signature of the testator, the date the changes were made and the signature of two witnesses. It should be stored with the original Will.

Is a handwritten codicil legal?

A handwritten codicil, or ‘holographic’ codicil is a valid legal document if it follows the right formula. It must be written, signed and dated by the testator and make it clear the notes are an official addendum to the existing Will. In some cases courts will still consider handwritten codicils valid even if they haven’t been witnessed or were not signed by the deceased.

Can you add a codicil to a will yourself?

Yes. A codicil can be handwritten or typed up without having to engage any lawyers. Changes can be made to the original Will by crossing out sections or writing in new ones as long as the changes include the date they were added and the signature of the testator. They should also be accompanied by the signature of two witnesses alongside the changes. Codicils can also be included as separate notes stored alongside the original Will.

Summary

If the pandemic has taught us anything it is that nothing is certain. Relationships break down, people die and babies are born every day. Things are changing constantly in our lives so it makes sense that your final wishes might change too. But it might not make sense to create a new Will every time something changes. That’s why codicils exist.

Codicils are an easy way to change or add an Executor, include gifts for Beneficiaries or clarify existing clauses within your Will. They can be used to change or revoke decisions made in the Will like updating Beneficiaries for property or other assets. A testator can also use a codicil to detail who will take over the ownership of their pets when they pass away.

Since they are so easy to create it can be tempting to lean towards a codicil instead of creating a new Will. But major life events like the death of a spouse, or a divorce or family separation could be grounds for creating a new Will entirely.