Will Amendment: codicils

Question 1

What are the ways in which a testator might amend its will?

Answer 1

• make an entirely new will
• make a codicil to an existing will
• make manuscript amendments to their original will

Question 2

What is a codicil?

Answer 2

A formal testamentary document that amends an earlier will rather than replaces it - both document remain active and are intended to be read together.
* testator to make a valid codicil, must have testamentary capacity, knowledge and approval and compy with s.9 rules
* codicil must refer to original will it amends

Question 3

When are codicils appropriate?

Answer 3

• create new provisions in a will (e.g., add a legacy for new beneficiary)
• edit existing provisions in a will (e.g., change value of a pecuniary legacy)
• revoke provisions in a will (e.g., remove particular beneficiary’s entitlement)

= if testator wants to make significant or multiple changes, they should be advised to execute new will rather than make a codicil so to remove risk of inconsistency between documents
= no legal maximum number of codicils a person can make but adviseable to keep it to a minimum

Question 4

What issues may arise when drafing codicils?

Answer 4

• not expressly noting a change to testator’s name and address
• not affirming parts of original will which remain unchanged
• new codicil that refers only to original will and not previous codicils
• incorrect references to clause numbering
• effect of codicil does not make sense when read in conjunction with original will or fails to account changes made by previous codicils

Question 5

If there is no express words of revocation, what does this mean to codicil?

Answer 5

There is a rebuttal presumption that terms of original will remain where possible - codicil will only revoke earlier will to extent there is inconsistency between them
* inconsistencies that arise with regards to date of will, earlier codicil or no. of codicils that exist, affidavit evidence can be provided to explain discrepancy

Question 6

What is the effect of a codicil to the will?

Answer 6

Codicil when executed acts to ‘republish’ the will as such, will is given effect as if it had been executed on date on which codicil was executed

• when apply general rules of construction to clauses in original will, date of codicil if made, would be used - whether or not codicil was amended

Question 7

How do codicil correct problems in wills?

Answer 7

• General rule is that if a spouse or beneficiary witnesses a will, they are denied their share in the will BUT if a later codicil is witnessed by different people, gift under original will can be given effect to but those who witnessed codicil, are then denied from benefitting.
• if will contains unattested manuscript amendements and so invalid, these can be confirmed by a later codicil:
  
  • given that amendments were made before codicil is executed
  • and codicil expressly refers to alteration it confirms
  • or otherwise, addiitonal evidence is needed to prove amendment was made before codicil was executed
• if will (or previous codicil) was not properly executed in accordance with s.9, then due execution of codicil will validate original will and previous codicil to which it refers

Question 8

Revocation and revival?

Answer 8

Revocation:
- codicil may revoke only part of an earlier will or codicil or may revoke document in full
- if codicil expressly revokes previous will and codicils in full, unless codicil contains new terms, testator will be intestate
- if codicil revokes all/part of will and codicil itself, this would not automatically re-instate terms of will that had been revoked by codicil

Revival:
- codicil can re-publish a will already valid but it can also revive a will that was revoked previously if testator’s intention
- preferable to make a new will rather than revive a will that has been revoked as there may be confusion regarding testamentary documents and if original was destroyed it cannot be revived