After people have a will in place, time passes and “life happens” – people get married, have children, family members pass, familial relations change, and people lose and acquire property. Instead of writing an entirely new will, a codicil allows one’s existing will to be changed. A codicil can modify, add to, subtract from, or revoke provisions in the will. The amendment to the existing will could be one paragraph, one sentence, or even one word. A codicil does not revoke the entire existing will, it only makes the desired changes stated in the codicil.
Why were codicils created? Before computers, wills were drafted by hand, and eventually typed on typewriters. If someone wanted to make an amendment to a will, it didn’t make sense to handwrite or typewrite an entirely new will to reflect minor changes. A codicil allowed amendments to be made without re-writing the entire will.
Are codicils used today? Computers now allow attorneys to quickly re-write and amend wills. Consequently, codicils are rarely used today. Not only are codicils rare because of the benefit of computers, some attorneys advise against them altogether.
Codicils get lost. The benefit of having a Last Will and Testament is that all of the documents are together in one place. For the codicil to take effect, it must be submitted with the will to probate court. If a codicil has been misplaced, the desired changes will not take effect.
The law changes. Congress and the state legislatures change the tax laws and the laws regarding probate and real property. Lawyers have to update the standard language in their wills and other documents to conform with changes in the law. By executing a codicil to a will, it is possible that the changes in the law since the existing will was executed will not be incorporated.
It’s easier. Attorneys use different formats and language in their standard wills. An attorney familiar with their own standard wills, knows where to make necessary amendments, and how it will affect other provisions. Using the same format saves time for the attorney and makes it more likely the amendments will have their desired affects. It’s easier for an attorney to simply re-write the will instead of explaining how the codicil will change the will, especially where the codicil affects multiple provisions. Finally, because codicil is a testamentary document (in other words, it has the same force and effect as a will), the codicil must follow the same execution requirements of a will, i.e. must be signed by two witnesses, among other requirements.
It’s safer. A codicil does not guarantee that the existing will is valid. A new will that is properly executed, however, is more likely to be found valid. If the original will is invalid because it did not conform to statutory requirements or for some other reason, it is possible that the codicil could also be deemed invalid.
This blog post is only intended to be informative and is not a substitute for comprehensive legal advice. For legal advice on estate planning needs, please call our office at (319) 260-2096 or email one of our attorneys!