Codicils: The Hidden Risks

It’s not uncommon for a will-writer to want to make a modification to an outdated will that they’ve written years ago. Often times, will-writers only want to make small changes to their will – maybe changing a single sentence in the will or adding a beneficiary to the will. You can use a codicil, usually a small document, to make amendments to a will. The document specifies any changes to the original will that the will-writer would like to make. Codicils can be suitable for simple modifications, but you shouldn’t use them when the changes are complex. It’s important to consider the legal implications when drafting a codicil, especially when attempting to draft a codicil without professional guidance. In this article, we’ll go over some of the common problems that can arise from implementing codicils into your estate plan.

Codicil Basics

A codicil is a document that allows you to make minor changes or additions to an existing will without having to create an entirely new will. Essentially, it serves as an amendment to the original will. People usually implement codicils for updating specific provisions in their will. Common reasons people use a codicil to update their will include:

• Updating names of beneficiaries who have changed their name.
• Changing your executor.
• If you acquire a new asset and wish to designate a beneficiary for it.

However, it’s important to remember that while codicils provide flexibility, they have limitations. Though a codicil is straightforward, it’s not always the best option for modifying your existing will. If you need to make complex changes, we recommend drafting an entirely new will.

Codicils Can Hinder Your Estate Planning Goals

Drafting unclear testamentary documents can expose the estate to risk of litigation. If your executor can’t specifically determine your testamentary wishes, they might distribute your assets in a way you didn’t intend. Further, beneficiaries can dispute the will, which can lead to lengthy litigation. Having imprecise testamentary documents will ultimately cause stress for your loved ones and can delay their inheritance. Codicils, while useful, can pose significant risks if not properly implemented. Here are some risks to consider:

Legal Disputes: Interested parties may dispute the codicil in court if you haven’t executed it correctly. This can lead to lengthy legal battles, causing emotional distress and financial burden for the beneficiaries.

Inconsistencies with the Original Will: A poorly drafted codicil may contradict the original will in unintended ways, leading to confusion and potential disputes. You must ensure the codicil aligns with the intentions you outlined in the original will.

Misinterpretation of Intentions: Without clear language, a codicil may be open to interpretation. This could result in the estate being distributed in a way that the testator did not intend.

Invalid Codicils: For a codicil to be valid, it must meet certain legal requirements, such as being signed and witnessed. The courts may deem the codicil invalid if it doesn’t meet these requirements. This may mean the codicil is set aside, or beneficiaries must apply to the courts to have the codicil cured into a valid testamentary document.

Implementing Multiple Codicils

A very common mistake is the addition of multiple codicils to your will over time. This can lead to a confusing patchwork of amendments that may contradict each other or the original will. It can also make the will difficult to interpret, increasing the risk of legal disputes. Undertaking proper execution and witnessing of each codicil increases the chance of error with each addition. Drafting a new will often becomes more efficient when there are multiple changes. This allows for a comprehensive review of the estate plan and ensures that all provisions are consistent and up-to-date. Remember, clarity is key in estate planning to ensure your wishes are carried out as intended.

Preventing Codicil Complications

Preventing complications with codicils involves careful planning and execution. Will writers should consider the following when implementing codicils:

Proper Execution: Ensure that the codicil is executed correctly in order for it to be a valid testamentary document. The will writer and two witnesses must sign a codicil, just like wills.

Consistency with the Original Will: Review the original will and the codicil together to ensure they are consistent and there are no contradictions. If a change is significant or complex, it may be better to create a new will.

Using Clear Language: Use clear and unambiguous language in the codicil to ensure your intentions are understood. Ambiguities can lead to disputes and legal challenges, so include as much detail as possible.

Professional Advice: Estate planning professionals can provide guidance on whether a codicil is the best option and ensure it is implemented correctly.

Regular Reviews: Regularly review your will and any codicils to ensure they continue to reflect your wishes. Life changes, such as marriage, divorce, or the birth of a child, may require updates to your estate plan.

Reminders for Will Writers

Codicils may be the right solution for making minor amendments to your will. They offer a way to adjust your estate plan without having to rewrite your entire will. However, as we’ve discussed, they come with their own set of risks, especially when not properly implemented or when used multiple times in your will. 

The key takeaway is this: always seek professional help when making amendments to your estate plan. Estate planning professionals can provide valuable guidance on whether a codicil is the best option for your intended changes, or if a new will would be more appropriate. They can also ensure that any changes are implemented correctly, reducing the risk of disputes and litigation after your death.

Remember, your estate plan is a living document that should evolve with your life and circumstances. Regular reviews and updates, done with professional assistance, can help ensure that your wishes are carried out as intended and that your loved ones are protected. Estate planning can be complex, but with careful consideration and the right advice, you can navigate it successfully.

If you’re ready to make updates to your will, or begin your estate planning journey from scratch, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.