A will may not be the final word on what your client wants to happen on death. Things change, and it may be necessary to add or delete something (or someone) from a will. But when you want to make a change, should you do it with a codicil, or do you need a whole new will?
A codicil is mainly used to add new or supplementary provisions to a will, to revoke part of a will, or to revoke a prior codicil totally or partially.
In deciding whether the testator’s wishes can best be carried out by a codicil or by a new will, consider these factors:
- Is the contemplated change simple? Codicils are very useful when the change is simple. For example, if you’re changing the amount you’re leaving someone or appointing a different executor.
- Is time of the essence? If you don’t have much time to make the change, a codicil may be a better choice than writing a new will under time pressure.
- Is cost an issue? If you want to keep costs down, a codicil usually takes less attorney time to prepare, and is thus less expensive.
- Will the codicil complicate interpreting the will? If the codicil provisions will complicate interpretation of the will, draft a new will instead.
- Are there already several codicils? Too many codicils can complicate matters. If the testator has already executed several codicils, it may be better to prepare a new will consolidating all the testamentary provisions into one instrument.
- What are the probate requirements for the will and the codicil? If the will and the codicil will have different sets of witnesses, consider the possible inconvenience of proving the two instruments for admission to probate. If the change to be made by codicil will eliminate a particular devise, check the impact of local probate rules governing notice. If the rules require notice of probate proceedings to any beneficiary of the will, including one whose devise has been revoked by a codicil, the testator may prefer a new will to eliminate the need to give notice to the former beneficiary.
- What are the consequences of republication of the will? If you’re thinking of going with a codicil, investigate the possible consequences of republication of the will on the will’s meaning and effect. Because a will is republished on the date of execution of a codicil, some of the will’s original provisions could be construed as ambiguous because of intervening events or changes in law.
If you decide to go the codicil route, be very careful in drafting it so as to avoid ambiguous provisions. For example, specify whether a bequest to a person in the codicil is in addition to or instead of the bequest to that person in the will.
And be extra careful in preparing a codicil to a will drafted by someone else. If the codicil confirms and republishes the will, the drafter of the codicil could be held responsible for any errors in the will. In addition, it’s easier to create ambiguities or inconsistencies when amending a will drafted by another person. Ironically, the additional time it takes to ensure accuracy and consistency may make preparation of a codicil more expensive than preparation of a new will!
All issues involved in drafting wills (and codicils) for every type of client and every type of estate is covered in CEB’s California Will Drafting. On amending a pourover will, turn to CEB’s Drafting California Revocable Trusts.
Related CEB blog posts:
- If We Die, Where Will the Kids Go?
- Rule Against Perpetuities Is Still Relevant
- One of the Most Important Decisions We Ever Make: Choosing an Executor
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