Codicils

USE AND PREPARATION OF CODICIL

A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document.  A codicil must be executed with the same formalities as a will and must be made with testamentary intent. A writing that refers to a will, but shows no intent to change it, lacks testamentary intent and is not a codicil. A valid codicil is part of the will to which it refers, and both instruments are construed together as one.

The word “will” is defined by the Probate Code to include codicils “and any testamentary instrument which merely appoints an executor or revokes or revises another will. Thus, provisions in the Probate Code that apply to “wills” also apply to codicils.

A codicil need not be executed in the same way as the will it modifies. Thus, a holographic codicil can be made to a witnessed will and vice versa. However, the codicil must satisfy the execution formalities for one of the recognized types of testamentary disposition. Thus, a witnessed codicil must satisfy the requirements for a witnessed will  and a holographic codicil must satisfy the requirements for a holographic will.

A codicil should clearly state the client’s intent to republish the previous will if republication is desired. Such a provision may be undesirable unless there is a thorough review of the will. Wills are generally construed based on the law in effect at the time they are originally drafted. If a relevant law has changed, republication may have the effect of changing the meaning of a provision the testator wants left unchanged.

Republication is not necessary to pass property acquired after the date of execution of the will.  A codicil is chiefly 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. Other uses include revival of a revoked will, validation of an invalid will (i.e., incorporating by reference an improperly executed will into a properly executed codicil), and republication or redating of a valid will (e.g., updating the incorporation-by-reference clause in a pourover will when the inter vivos trust has been amended after execution of the will.

In deciding whether the testator’s wishes can best be carried out by a codicil or by a new will, the attorney should consider a number of factors. A codicil may be appropriate if the contemplated change is simple (e.g., altering the amount of a general pecuniary devise or appointing a different executor), the time to make the change is short, or the limiting of costs is important. A codicil may also be desirable if the testator’s testamentary capacity is currently questionable; if the codicil is held invalid, the will still survives. If the codicil provisions will complicate interpretation of the will, the attorney should advise the drafting of a new will instead of a codicil. This is also sound advice if the testator has already executed several codicils. In this case, the attorney should prepare a new will consolidating all the testamentary provisions into one instrument. In deciding between a new will and a codicil, the attorney should also consider probate requirements. If the will and the codicil will have different sets of witnesses, the attorney should 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, the impact of local probate rules governing notice should be checked. If the rules require notice of probate proceedings to any beneficiary of the will, including one whose devise has been revoked in a subsequent codicil, the testator may prefer a new will in order to eliminate the need to give notice to the former beneficiary.