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 the all important legal document, all your ducks in a row and you 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 personal and financial circumstances change.

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

From minor changes to marriage or divorce, having children who require a legal guardian, buying a new property or deciding on specific gifts or legacy you'd like to leave can all mean that your Will is due for a review. Ensuring your will remains legally valid when making these changes requires essential to ensure your beneficiaries benefit from this legal document, and aren't left with future court hassle and complex estate administration if there are multiple codicils.

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

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 a new will.

What is the purpose of a Codicil?

Codicils exist so you can make changes, without having 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.

You'd normally use one when you want to make minor change, or add an extra instruction that still works within your overall Will and won't confuse or cancel out any other parts.

When do you need a Codicil?

Situations where people might want to add a Codicil to their wills include:

• Changing/ adding an Executor or Guardian: whether this appointed person has died, can't fulfil the role for anymore, or you just want to add a backup

• Making a specific gift or bequest: you may have newly acquired assets or influx of money- such as an item of worth like an antique or a piece of jewellery- which 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 marriage, for example, then a codicil can ensure your will remains valid and your loved ones are provided for.

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, estate or financial 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 in light of an earlier revoked will. This marks another important point to obtain legal advice, to avoid present and previous wills do not create contradictions, and violate rules and regulations required to grant probate.

How do I write a codicil to my original Will?

Writing a codicil is much easier than most people think. It can be written by hand or online, 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 a legal document?

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 an existing 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, and two witnesses.

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. Codicils facilitate these big and small changes, and allow us to reflect these changes without the hassle of an entire new will.

Safewill offers an affordable, easy and flexible way to write your will at home. You can make these small changes from the comfort of your sofa, but with the legal support of a traditional service. Get started today, with a call with one of our will experts on 1800 103 310 , or via live chat now.