Codicils & Updating your Will

18^th November, 2024

As life changes, so do your needs. Whether it’s a marriage, divorce, or a new family member, it’s important that your Will reflects those changes. But how can you update your Will without starting over from scratch? The answer may lie in a Codicil—a legal document that allows you to make amendments to an existing Will.

What is a Codicil?

A Codicil is an addition or change to a Will. It is a separate document that must meet the same formal requirements as a Will itself. These include being in writing, signed by the Will-maker, and witnessed in the proper manner. Codicils are typically used for small changes, such as updating a beneficiary’s name or changing an executor.

However, while Codicils are a convenient way to make minor amendments, they are not always the best option. If the changes are significant or numerous, it may be clearer and simpler to create an entirely new Will.

Why Not Just Change the Will Directly?

After you sign a Will, you cannot simply cross out sections or add new clauses in the margins. Any changes made in this way will not be legally valid. If you wish to make a change, you must either create a new Will or add a Codicil.

If you choose to use a Codicil, it’s crucial to ensure that it doesn’t cause confusion. A Codicil should not contradict the original Will or include any clauses that might revoke parts of the Will you didn’t intend to alter. If the Codicil is unclear or conflicts with the original document, the courts may find it invalid.

How Does a Codicil Work?

A Codicil is a separate document, but it is connected to your original Will. It must clearly reference the Will it is amending. For example, you might say, “I, [name], make the following changes to my Will dated [date].”

Like the Will, a Codicil must be signed by you and witnessed in accordance with the Succession Act 2006 (NSW). This ensures that the Codicil has the same legal standing as the original Will.

When Should You Consider Updating Your Will?

There are several life events that should prompt you to review or update your Will. These include:

1. Marriage: A marriage automatically revokes any Will made before it, unless it was made in contemplation of that marriage (Section 12 of the Succession Act).
2. Divorce: While a divorce doesn’t revoke the entire Will, it will remove your former spouse as a beneficiary or executor.
3. Children: The birth of a child or the adoption of a child is a key reason to update your Will. You’ll need to specify how you want your assets divided between your children and, importantly, nominate a guardian for them in case of your passing.
4. Substantial Relationships: If you enter a substantial relationship (such as living together with a partner), it’s wise to update your Will to reflect your wishes for their inclusion as a beneficiary. If you separate from a partner, updating your Will is crucial to prevent them from inheriting your assets unless that is your intention.
5. New Assets: Acquiring a new home, business, or investment might require updates to ensure your assets are distributed as you intend.

Revoking a Will

You can revoke a Will in several ways: by creating a new Will, by declaring in writing that you intend to revoke it, or by physically destroying the original Will (such as by burning or tearing it up).

However, a Codicil should never include a provision that cancels or revokes the entire Will. If it does, it could unintentionally revoke the very Will you intended to amend. This could create confusion or invalidate parts of your estate plan, so it’s important to ensure that a Codicil only makes specific, intended changes.

A Codicil can be a simple and efficient way to update a Will, but it must be done carefully. If in doubt, it’s often best to consult with a legal professional to ensure that your wishes are properly documented. Whether you choose to use a Codicil or write a new Will, making sure your Will reflects your current wishes is crucial for peace of mind.

If you need assistance with updating your Will, Castrikum Adams Legal is here to help guide you through the process. Contact us today to schedule a consultation.