A codicil amends, rather than replaces, a previously executed Will. Such amendments may add or revoke small provisions of the Will, or may completely change the majority, or all, of the gifts under the Will.
Historically, the concept of a codicil arose as a time saving exercise given the expectations that legal documents were to be completed in original ink in the same hand. With the electronic document production technology available to modern legal practices however, a new Will can be quite easily prepared and as such will in most cases be preferable to a codicil.
In considering the use of a codicil, testators should be advised of the following:
- If the existing Will is relatively lengthy and the proposed alteration is not complex, a codicil may be appropriate. If however, the existing Will is quite short and uncomplicated, the drafting of a new Will may seem more appropriate.
- Where the existing testamentary documents consist of a Will and numerous codicils, it would be prudent to create a new Will to consolidate all of the testator’s intentions.
- If the testator’s circumstances have changed so that the original will is substantially affected, a new will should be prepared. This is because a codicil republishes the existing will to the date of the codicil to the extent that the provisions of the existing will are not inconsistent with the codicil. An example of this may be, if the testator’s marriage has been terminated after the Will, a codicil could create problems by inadvertently confirming the provisions in favour of the former spouse by providing a contrary intention.
Another point to note is that, if the testator’s intention is to deprive a beneficiary of a benefit under an existing Will, a new Will would most probably be preferable. If the testator was to elect for the use of a codicil it would be apparent from the terms of the existing will when read alongside codicil that the testator had changed his or her mind. This may cause distress to the disappointed beneficiary upon becoming aware of the deceased’s subsequent change of heart.
If you have any questions regarding codicil or Will’s, please don’t hesitate to contact me.
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