The Pitfalls of Codicils

Why Small Amendments Can Lead to Big Problems

Writing your grocery list on a sticky note or a scrap of paper is a great idea until you can’t find it. Or worse: you’re trying to tell your spouse where to find it.

            “Did you find it? No, that one’s from last week…”

Unfortunately, drafting codicils to update a Will have a similar effect. There will be those who hire an estate lawyer to create a legally binding codicil.  They will store the original paper codicil neatly with the original paper Will, together with the Affidavits of Execution for both, and when their executor is applying for probate, the codicil applies as intended. But for the average grocery shopper, creating codicils greatly increases the risk of confusion, expense, and disorganization in an estate.  Codicils are frequently a DIY attempt to save some money while changing a Will.

Why Codicils?

Codicils were designed in the days before computers and printers.  After laboriously handwriting or typing a lengthy Will, the savvy Will drafting lawyer would simply prepare a short codicil for their clients to make smaller changes, such as a change of executor.

Lacking Clarity

Unlike updating a Will holistically, codicils usually focus on amending a particular section or clause. This creates an opportunity for confusion and error, should the amended section contradict the meaning of the Will at large.

Codicils have the same legal formalities as Wills, however, when created without this knowledge, by hand or at home, a codicil may actually invalidate the Will, leaving the family with a scrap of paper that instead becomes a holographic will.

Which will? How many codicils?

Furthermore, codicils are separate legal documents from a Will and they must be located with the Will. This means that when you store your original paper Will, you must store any corresponding original paper codicils (and the corresponding Affidavit of Execution) with it, and ensure that the codicil appropriately references the exact version of the Will that you intend to amend. While this may sound simple, individuals who draft codicils must ensure that the documents are never separated. If you draft more than one Will, or revise your Will over time, this also means you must keep track of which codicils accompany which Will. In the whirlwind of estate administration, it is easy for these documents to be separated or lost. If your family is aware of existing codicils but they cannot find them, or alternatively, are unaware of existing codicils that are recovered well into the administration process, this can frustrate and prolong the estate’s administration.

Or perhaps your executor or family prefers your Will without your codicil.  How is the court or anyone else to know you intended to change your Will with an amending codicil?

The End Result

A codicil may appear to be a faster and cheaper way to update a Will, rather than revising a Will. In the long term, however, codicils extend the period in which a testator’s family, lawyer, and the court will take to interpret and apply the intentions documented through the Will and codicils and increases the chance of challenges to estate administration.

While codicils and preferences may come and go, keeping your wishes in one place simplifies how your family will administer your wishes and keep your legacy intact.

If you have changes, small or large, to make to your Will, now is the perfect time to update your Will—and consider keeping your grocery list on your phone.