What is a Codicil

A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document. Basically if you need something changed in your Will, the Codicil is the way to go about doing this.  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. There are codes in Probate that provides that a will, whether or not modified or republished by a codicil, passes all property owned by the testator at death, including property acquired after the will execution.

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