Use and Preparation of a Codicil

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, then the drafter  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, you 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 If the rules require notice of probate proceedings to any beneficiary of the will, including one whose devise has been revoked in a subsequent codicil, the testator may prefer a new will in order to eliminate the need to give notice to the former beneficiary. Notice to a disappointed former beneficiary may lead to more than just hurt feelings; a contest over the probate of the codicil may result. For the same reason, a new will may be desirable when a devise is reduced.

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