Most people already know that a will provides instructions for dealing with someone’s assets after they pass away. Life circumstances commonly require a person to change their will, as an individual’s personal and financial circumstances can shift dramatically over time: people acquire and sell property, and family and relationship dynamics evolve (or devolve).
A codicil is one way to make changes to an existing will. What may seem like a relatively simple update, however, can significantly affect an estate. A change to one provision of a will often alters what a beneficiary receives, who is entitled to a particular asset, or how the estate is ultimately divided.
Questions often arise when a codicil is found under surprising or suspicious circumstances. Did the will-maker have the capacity to make the change? Did they actually intend to change their will in this way? Was someone else improperly influencing their decision?
For beneficiaries and executors with concerns about a codicil’s validity or its effect on an estate, legal advice may be necessary to determine how to address those concerns and whether steps should be taken to resolve the issue.
What Is a Codicil?
A codicil is used to amend an existing will and is treated as part of that document. Rather than replacing the original will entirely, a codicil modifies particular provisions while leaving the remainder of the will in place. For example, a codicil may be used to update a specific inheritance gift, name a different executor, or add a beneficiary. When someone’s circumstances or wishes have changed substantially, making a new will is more appropriate than adding multiple amendments to an existing one.
What’s important is that a codicil can change the legal effect of the original will. The documents must be read together to determine which provisions changed and how the estate should ultimately be distributed.
When Can a Codicil Become a Problem?
Problems start if there are questions about how the codicil was devised, whether the will-maker intended to make those changes, or how the codicil should be interpreted alongside the rest of the will.
Is the Codicil Valid?
The Wills, Estates and Succession Act (WESA) includes requirements for making and executing a codicil. Generally, a codicil must meet the same formal requirements that apply to making a valid will. This includes:
- The will must be in writing. WESA permits wills to be made in electronic form, subject to the Act’s requirements.
- The will-maker must sign the codicil, or acknowledge their signature, in the presence of two or more witnesses who are present at the same time.
- The witnesses must sign the codicil in the presence of the will-maker.
- The will-maker must have the mental capacity to make the codicil.
- The document must be intended to have effect as part of their will rather than simply expressing a thought, wish, or plan about what they might want to do with their property.
Failing to meet all of these requirements doesn’t necessarily mean a document has no legal effect. WESA allows the court to recognize a document that does not comply with the usual formalities if it represents the deceased’s testamentary intentions.
Did the Will-Maker Have Testamentary Capacity?
While WESA requires a person to be mentally capable of making a will, the legal test for testamentary capacity comes from common law. Generally, the will-maker must understand:
- The nature and effect of making or changing a will;
- The extent of the property being disposed of;
- The people who may have a legitimate claim to benefit from their estate; and
- How the changes they are making will affect the distribution of their estate.
Questions about testamentary capacity can become particularly important when a codicil makes a significant or unexpected change to a person’s estate plan, especially if it was made when the will-maker was experiencing cognitive decline or other circumstances that may have affected their ability to understand the change. Testamentary capacity is a legal question, not simply a medical diagnosis, so the circumstances and evidence surrounding the codicil both need to be considered.
Was the Will-Maker Unduly Influenced?
A person is generally free to change their will as they see fit, and family members or others can express their wishes or opinions without influencing the will-maker improperly. Undue influence is different. According to WESA, undue influence occurs when a will-maker is dependent on or under the control of another person, and that person uses their position to influence the will-maker’s decisions about their will.
If someone benefits from a change and had a position of influence over the will-maker, beneficiaries may want to consult a lawyer. An allegation of undue influence is serious and requires more than simply showing that someone had a close relationship with the will-maker or persuaded them to make a change. The circumstances must support the conclusion that the will-maker’s own wishes were overborne.
Does the Codicil Apply to the Correct Will?
A codicil is meant to be read alongside the will it amends, so there must be no confusion about which will the codicil was intended to change. This gets complicated if someone has multiple wills or codicils in their lifetime.
For example, a will-maker may have made a will in 2018, replaced it with a new will in 2022, and then signed a codicil referring to the earlier will. If the documents do not clearly establish which will the codicil was intended to amend, beneficiaries and executors may be left with questions about which provisions remain in effect and how the estate should be distributed.
Issues may arise if a codicil was not properly signed or witnessed, does not clearly identify the will it is intended to change, or doesn’t clearly demonstrate that the will-maker intended the document to take effect as part of their will.
Have Concerns About a Codicil?
If you have concerns about a codicil affecting an estate, you should speak with a lawyer before assets get distributed. Whether the concern involves the validity of the codicil, the will-maker’s testamentary capacity, potential undue influence, or uncertainty about which will the codicil applies to, an estate litigation lawyer can help determine what options may be available. Stephens & Holman can advise beneficiaries, executors, and other interested parties involved in estate disputes. Contact us today for a complimentary consultation.