Codicil of Will in Australia: How to Make Changes to Your Will
A will is necessary to ensure that your assets and possessions are distributed according to your wishes after death.
What if, however, your circumstances or desires change? In Australia, a codicil of will is a legal document that allows you to modify your will without having to draft a new one.
This guide will explain a codicil of will, when it may be required, and how to construct one.
What is a Codicil of Will?
A codicil is a legally binding document that allows an individual to make minor changes or amendments to their existing will without having to draft a new one.
It must be executed with the same legal formalities as a will, which generally means it must be signed and witnessed in the same way.
When Do You Need to Make a Codicil of Will?
Typically, a codicil is created when minor modifications or additions are made to an existing will. Here are some instances in which a codicil may be required:
Change of Executor: If you wish to change the executor of your will (the person responsible for carrying out your wishes after your death), you can do this through a codicil of will.
Addition or Removal of Beneficiaries: If you want to add or remove beneficiaries (the people or entities who will receive your property or assets), a codicil can be used to make this change.
Change in Asset Distribution: If you acquire new assets that you want to include in your will or if you’re going to change the distribution of your existing assets among your beneficiaries, you can use a codicil to make these changes.
Change of Guardians: If you have minor children and wish to change their appointed guardians in your will, you can do this through a codicil of will.
Change in Personal Circumstances: Changes in personal circumstances such as marriage, divorce, the birth of a child, or the death of a beneficiary or executor can necessitate updates to a will, which can be done through a codicil.
If the modifications you want to make to your will are substantial or complicated, it may be more appropriate, more precise, and safer to create a new will rather than a codicil.
Multiple codicils or codicils that make substantial modifications may result in confusion or legal disputes after death.
Who Can Create a Codicil to Change a Last Will?
The person who drafted the original will, also known as the testator, can create a codicil. In general, the following requirements apply:
Mental Capacity: The person making the codicil must have the mental capacity to understand the nature and effect of the document they are creating.
This is similar to the requirement for creating a will. They should understand what assets they have and how the codicil will affect the distribution of those assets.
Age: Someone who is at least 18 years old should make a codicil, just like they would with a will. In some exceptional circumstances, a person under 18 can make a codicil, but specific legal advice should be sought.
Voluntarily and Without Pressure: The testator must make the codicil of their own free will and not be under any undue pressure or influence from others.
It’s important to remember that a codicil is a legal document that must be executed with the same formalities as a will.
This typically means that it must be in writing, contain the testator’s signature, and have at least two witnesses who are not beneficiaries.
Do I Need a Lawyer to Add a Codicil to My Last Will?
While it’s not legally required to have a lawyer add a codicil to your will, it’s highly recommended.
Wills and codicils are essential legal documents that dictate the distribution of your assets after your death, and mistakes can cause significant issues and disputes among your heirs.
In some cases, errors might even result in a court declaring your will or codicil invalid.
A lawyer can provide expert guidance and ensure that the codicil accurately reflects your intentions, complies with all legal requirements, and integrates properly with your existing will.
They can also advise on whether a codicil is the best way to make the changes you want or if creating a new will would be more appropriate.
Moreover, the laws around wills and codicils vary from state to state in Australia, so a local lawyer can ensure your codicil complies with the relevant laws in your jurisdiction.
How Do I Create a Codicil of Will?
Creating a codicil of will generally follows these steps:
Identify the Changes: Determine what changes you want to make to your will. Make sure these changes are specific and clear.
Draft the Codicil: A codicil of will should be a separate document that refers to the original will it modifies.
It should clearly state that it’s a codicil, name the person making the codicil (the testator), and identify the date and location of the original will. Each change should be clearly stated.
Sign and Witness the Codicil: The codicil must be signed and witnessed with the same formalities as the original will.
This typically means that the testator should sign it in the presence of at least two witnesses, who should also sign the codicil.
These witnesses should be people who are not beneficiaries in the will or codicil to avoid potential conflicts of interest.
Store the Codicil Safely: Once signed, the codicil should be stored with the original will but not attached to it (e.g., by staples), as this might raise questions about whether the will has been tampered with. Inform your executor(s) about the existence and location of the codicil.
What Are Some Common Mistakes I Should Avoid When Creating a Codicil?
Creating a codicil to amend a will can seem straightforward. Still, there are common mistakes to avoid to ensure the codicil accurately reflects your wishes and does not lead to disputes or confusion in the future:
Inadequate Execution: Like a will, a codicil must be appropriately signed and witnessed according to the laws of your jurisdiction. In many places, this requires the presence of two adult witnesses who are not beneficiaries under the will or codicil.
Inconsistent with the Original Will: A codicil of will should not contradict the original will. If there are inconsistencies, this can lead to confusion and potential legal disputes.
Lack of Clarity: The changes you wish to make in the codicil should be stated clearly and explicitly. Any ambiguity can lead to different interpretations and potential disputes among your beneficiaries.
Incorrect Referencing: The codicil should correctly reference the will it is amending. This includes the testator’s name and the date the will was made.
Multiple Codicils: If there are many changes to be made or if you have already made several codicils, it might be better to create a new will. Multiple codicils can lead to confusion and increase the potential for contradictions or mistakes.
Failing to Seek Legal Advice: Given the potential complexities and the importance of wills and codicils, seeking legal advice is generally a good idea.
A legal professional can help ensure the codicil is appropriately drafted and executed and accurately reflects your intentions.
Can a Codicil Be Challenged?
Yes, a codicil to a will can be contested like the will itself. Common grounds for contesting a codicil include:
Lack of Capacity: This happens when the person making the codicil (the testator) does not have the mental capacity to understand what they were doing when the codicil was created. Evidence of dementia, Alzheimer’s disease, or other conditions that affect cognitive function could be grounds for contesting a codicil on this basis.
Undue Influence: This occurred when the testator was coerced, manipulated, or otherwise influenced to create the codicil in a way they wouldn’t have if they were acting under their own free will.
Fraud or Forgery: The codicil can be contested if it can be proven that the codicil is fraudulent or that the testator’s signature was forged.
Improper Execution: A codicil can be contested if it is not executed correctly according to the jurisdiction’s laws. According to the jurisdiction’s rules, a certain number of witnesses must not be beneficiaries to be present at the signing.
Contradictions or Ambiguities: It may be contested if the codicil contains contradictions or ambiguities, especially ones that create conflict with the original will.
Do You Need Help with a Codicil of Will in Australia?
A codicil of wills is a convenient way to change your will without rewriting the document. However, it can also create confusion and conflict if not done correctly.
You may need legal advice on how to draft, execute, and store your codicil of will to ensure that it is valid and reflects your wishes.
At Justice Family Lawyers, we have the expertise and experience to help you with all your will and codicil of will matters. We can guide you through making changes to your will and advise you on any legal issues that may arise.
Contact us today for a free consultation and learn how we can help you with a codicil of will in Australia.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.