A will amendment, also known as a codicil, is a legal instrument that enables a testator to modify, revoke, update, or supplement the terms of an existing will. Will amendments can be attached to the will document itself, or they can be created as a separate document. Such amendments can be very useful for when a testator needs to make a minor change to their will.
On the other hand, testators who need to make drastic or major changes to their will should strongly consider drafting an entirely new will document.
Some common examples of when a will amendment or codicil might be more effective include:
- When you need to add or remove beneficiaries;
- If you need to appoint a new estate executor or legal guardian;
- When there has been a change in circumstances (e.g., you acquired more property, higher income, lost property or assets, etc.); and/or
- If you recently got divorced, remarried, or had a baby.
It is important to note, however, that will amendments or codicils are no longer as necessary as they once were before computers existed. Codicils made it easier to update a will without having to handwrite or re-type the whole will. Since wills are normally drafted using computer software now, it may make more sense for you to have a local will lawyer revise an existing copy.
How Do Changes to a Will Affect Its Validity?
Generally speaking, making changes to a will should not affect its validity if it is done properly. Will amendments must be created in accordance with the same level of formality that was employed when the will was originally executed.
While the specific laws and requirements for modifying a will typically vary by state, the following considerations should be taken into account when adding an amendment to an existing will:
- Be sure to have two witnesses present to sign the will amendments;
- The testator must always sign and date any changes made to their will;
- If a testator is creating a separate document for such changes, they should keep it in the same place that they store their will;
- If a testator is not creating a separate document for such changes, then they should place the codicil next to the relevant section in their will (as opposed to placing it in a random spot on the will document); and
- Somewhere within the will amendments the testator must incorporate a statement that says the amendments are meant to be included as part of the final will.
In some cases, changes that are made improperly can potentially invalidate the entire will or may not affect the contents of the will at all. For example, if a codicil names new beneficiaries, but it is not executed in compliance with state laws, then those new beneficiaries may receive nothing when it comes time for probate.
What is a “Codicil”?
As discussed above, a codicil is another term that is used to refer to will amendments. Codicils must be drafted, reviewed, and formally executed in the same manner as the original will. For instance, amending a will through an oral codicil is generally not considered valid. This is especially true in cases where the original will is in writing.
In addition to the examples discussed in the first section, some other reasons as to why a testator may want to draft a codicil include:
- To specify burial wishes (e.g., cemetery, cremation, etc.);
- To provide instructions on who should care for their pets after a testator passes away;
- To avoid the expense and extra time required to make a new will; and/or
- To tack an extra amount on to an initial bequest (e.g., if a beneficiary is receiving a certain sum of money in the original will and the testator decides to gift them even more money because they realized they could afford it).
Lastly, while a codicil does not normally have content restrictions, it may be wise to keep these provisions as clear and concise as possible. This will help a court to determine the testator’s intentions in the event of a future legal dispute or to clarify the individual’s last will and testament during a probate proceeding.
Should I Make an Amendment or Simply Re-write My Will?
Whether an individual should use a codicil or simply re-write their will instrument, will depend on the types of changes that they intend to make. Again, a codicil should be used to make minor or small changes to a will, whereas large changes to a will should involve drafting an entirely new will document.
Aside from when a testator is making major changes to a will, some other examples of when it may be appropriate to re-write or create a new will include:
- When there are multiple versions of a will or will amendments and the documents have become confusing or contradicting;
- If a testator is worried about their beneficiaries seeing the terms of an original will (e.g., if they disinherited a beneficiary or gifted them a lower amount of inheritance); and/or
- The testator is making amendments to or creating a new trust.
It should be noted, however, that a new will document will effectively cancel the existing one. This is important to keep in mind because it means that if the new will is written in convoluted and ambiguous language or is drafted in a way that makes it invalid, then the existing will document will take precedence. Vague and confusing will amendments happen to be a common basis of will disputes.
Finally, will amendments are most accepted in cases where they do not conflict with the terms of an existing will. Thus, a testator who plans to modify their will should consult a local estate planning attorney for further advice.
Do I Need a Lawyer for Help with a Will Amendment?
It is strongly recommended that you hire a legal expert to draft and review any amendments to a will. This is true even in cases where it is as simple as adding a new beneficiary. Failing to comply with will drafting requirements can have the effect of cancelling or invalidating your will.
As such, beneficiaries who anticipated inheriting certain property items or whom you wished to gift specific assets may lose out on such benefits during probate if the will or any will amendments were drafted improperly. Property and/or assets that are not designated to anyone will follow state succession laws and could eventually revert back to the state instead of a loved one.
Thus, to prevent this situation from happening, you should contact a local will lawyer for further guidance. An experienced estate planning lawyer can help you draft, review, and execute the terms of your will document and/or any amendments to your existing will. Your lawyer can also make sure that any changes will be legally enforceable in the event of a will dispute.
In addition, if a dispute arises over amendments to a will, your lawyer will be able to represent you or your estate in court and can assist you in recovering potential forms of relief.
Finally, while planning ahead and making decisions about the future of your estate may seem morbid, these matters are actually extremely important when it comes to protecting your family and your interests. By making sure that documents like your will and/or any codicils provide clear instructions on how you wish your estate to be distributed, you can rest assured that your loved ones will be taken care of when you are deceased.
