A codicil is a legal document that amends or changes an existing will. Codicils are generally used to make minor changes to a will. Most lawyers will not choose to use a codicil to make major changes to a will; rather, they will choose to prepare a new will instead.
The first step in writing a codicil is deciding whether a codicil is the appropriate legal document for amending the existing will. Are the changes that must be made to the will minor? If the changes are minor, then a codicil may be the appropriate means to amend the will. A codicil may also be the appropriate legal document if there is any doubt about the testator’s mental capacity to make a will. If a codicil is used and the testator is found to have been mentally incompetent when the codicil was signed, then only the codicil will be invalidated and the remainder of the original will remain effective.
What are minor changes to a will? A change to a single provision of a will that does not affect any other parts of the will would usually be considered to be a minor change. Examples of minor changes include changing the executor or changing a specific bequest in a will.
If a codicil is the appropriate legal document, then how do you write a codicil? A codicil must be in writing and must be executed with the same formalities as the original will. In most states, that means that the codicil must be signed by the testator (person making the codicil) in front of 2 or 3 witnesses. Additionally, a self-proving affidavit may also be utilized to eliminate the need for the witnesses to testify in court about the execution of the codicil. A self-proving affidavit is an affidavit signed by the testator and the witnesses in front of a notary public and setting forth the facts about the execution of the will or codicil.
The codicil should clearly state that it is a “codicil to the last will and testament of [name of testator] dated [date of original will],” in order to avoid any confusion about the will that is being amended by the codicil. Next, the codicil should state the amended will provision in clear, precise language. The testator should sign the codicil in front of the required number of witnesses and the notary public. Finally, the witnesses should sign the codicil in front of the testator and the notary public.
The original codicil should be kept with the original will. The testator should keep a copy of the codicil for his records. Additionally, the testator may want to consider sending a copy of the codicil to the executor under the will so that the executor will be aware of the existence of the codicil.
Modern word processing software has made codicils rare; however, codicils are appropriate in some circumstances and it is important to know how to properly write and execute a codicil to ensure that the testator’s wishes are carried out.