What is a Codicil?
A Codicil is a document used to make amendments (additions, subtractions, and modifications) to a Last Will and Testament. The Codicil specifies which clause in your Last Will you’re amending and precisely how it’s changing.
What changes can I make to my Last Will with a Codicil?
You can use a Codicil to make nearly any changes you wish to your Last Will and Testament within reason. Some common elements people use Codicils to change in their Last Wills include:
- Changing the beneficiaries of their estate, assets, and gifts
- Naming new guardians for their children
- Adding or replacing an executor
- Updating or removing specific clauses
- Adding new assets or gifts for distribution
- Adding instructions for taking care of newly acquired pets
For example, you can use a Codicil if you’ve changed your mind about who you want to give the responsibility of distributing your assets to your beneficiaries when you pass away (the executor).
Ideally, you’ll only use a Codicil to make one or two minor changes to your Last Will. Having many Codicils attached to your Will can lead to confusion. It’s usually a good idea to create an entirely new Will if you’re making extensive modifications to reflect significant life changes.
Who can create a Codicil to change a Last Will?
Only a Last Will’s creator (also called a testator) can use a Codicil to amend the document. Anyone at least 18 years old and is of sound mind, memory, and understanding can be a testator.
The Will’s executor or someone with Power of Attorney doesn’t have the authority to create a Codicil.
Can I add a Codicil to my Last Will without a lawyer?
A Codicil is legally valid even if a lawyer didn’t help you create it. However, while it may not be a legal requirement to involve a lawyer in the process, consulting one is a good idea. A lawyer can ensure your Last Will and any Codicils meet all the conditions necessary for a judge to consider them valid.
How do I create a Codicil?
You can easily create a customised Codicil by completing LawDepot’s questionnaire. Using our template will ensure you complete the necessary steps.
1. State your location
Start your Codicil by stating your location. Australian states and territories have their own estate laws, and LawDepot will customise your Codicil to meet the rules and regulations of your location.
The following legislation governs Last Will amendments in each state and territory:
2. Include the date your Last Will was signed
Specify the date you signed the Last Will and Testament that you’re modifying with your Codicil. Including this date helps anyone reading your Codicil understand which Last Will you’re amending and cross-reference.
3. Provide the testator’s details
Only a Will’s testator can create a Codicil to make modifications to it. The testator details to include in your Codicil are:
- Full name
- City/Town
- State/Territory
4. Specify the amendments you’re making to your Last Will
Amendments are the additions, subtractions, and modifications you’re using your Codicil to make to your Last Will. You can make modifications to any section of your Last Will. Some common amendments you can make with a Codicil include:
- Changing a beneficiary: a person or group receiving gifts in your Last Will
- Replacing a guardian: the person who gains custody of your minor children when you pass away
- Changing an executor: the person who ensures the terms within your Last Will and Testament are carried out exactly as you wish
- Deleting a clause: completely remove a clause from your Last Will instead of modifying it
Specify who you're replacing and their replacement if you’re changing a beneficiary, guardian, or executor. If you’re changing a beneficiary, also include which gifts the change will affect.
Regardless of what you're amending, it's essential to include a clause number. The clause number's purpose is to specify which part(s) of your Last Will you're modifying. You can find the clause number at the beginning of each clause in your Will.
5. Provide the signing details
You and at least two other people, acting as witnesses, need to sign the document for your Codicil to be legally valid. The witnesses also need to watch you sign the Codicil.
You and your witnesses should initial the bottom right-hand corner of each page of the Codicil (except the last page, which everyone signs). Generally, you shouldn’t use beneficiaries in your Last Will or Codicil as witnesses. In addition, the witnesses to your Codicil don’t need to be the same people who witnessed the signing of your Last Will.
How do I store a Codicil?
It's a good idea to keep your Codicil in the same safe and secure location you're also storing your Last Will. Keeping the two documents in the same spot helps ensure your Codicils aren't overlooked or forgotten.
What are common mistakes I should avoid when creating a Codicil?
Creating a Codicil is easy, but it's crucial to ensure minor mistakes don't compromise its validity. Some things you should double-check and keep in mind include:
- Choosing the correct wording: Confusing language can lead to mistakes and uncertainty when executing your Will. Be as clear as possible when describing amendments.
- Writing the Will’s date wrong: write the correct date of the Will you're amending
- Forgetting to date your Codicil: a Codicil without a date is invalid
- Misplacing the Codicil: store your Codicil in the same location as your Last Will
Can a Codicil be contested?
It’s certainly possible to contest a Codicil. Contention usually comes from a beneficiary of the Will. However, it can also come from someone familiar with the testator and their situation. The two most common reasons for contesting a Codicil are:
- Lacking mental capacity: A testator needs to be of sound mind when creating a Codicil. Amendments to a Last Will are only valid if the testator can understand what they agree to and the outcomes from the changes.
- Undue influence: A testator can't create a Codicil under the influence of fraud, forgery, or manipulation. Any amendments must occur through the testator’s own free will.
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