What is a Codicil and Why Should it Only Show Up in the Movies
The story is one for movies and books. The matriarch of the family passes away and there is a reading of the Will. By the way, few people do a public reading of the Will at the attorney’s office anymore.
Behind a large oak desk, the attorney drones on and the entitled granddaughter and her smarmy husband grin ear to ear. As they listen, they know they will be getting the lion’s share of the money after duping the saintly older woman into signing a bogus will.
But wait! The door flies open. Into the room rushes the virtuous grandson.
In his hand is a modification of the Will. The document was signed by the grandma a few days ago. This document grants most of the money to her favorite charity, an orphanage in Mexico the older couple has worked their lives to build and support. Cut to a shot three months later as the grandson with a beaming smile in the beautiful sunlight watches over well-dressed orphans playing and eating from a bountiful table of their favorite foods. We have the happiest ending, now cut to the credits.
Not so fast. As we know by now, Hollywood often gives us a false, though entertaining, view of reality. What happened in the scenes described above is the grandson presented a “codicil” to save the orphans. Black’s Law Dictionary – a very famous law dictionary – defines the word “codicil” as follows: “A supplement or an addition to a will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in [sic] existing will.”
Codicils are holdovers from a time before computers where documents were handwritten and rather lengthy documents. Rather than rewrite a lengthy Will, people would attempt to modify the text by writing a new page and signing and dating it. There are several reasons why people still try to go this route and why it is not a good idea.
Illegal – For a Codicil to be valid and accepted without any testimony or hearings, the document must be notarized before two witnesses, the same a will. Notarizing and witnessing a codicil makes it much more difficult to forge the document and steal the money and property from the rightful heirs.
Discovery – If the Codicil is valid, a second problem is it must be kept with the Will or might not be found at the time of probate. What if someone finds the Will and the codicil and prefers the terms of the original Will? They could destroy the codicil with none the wiser.
Multiple Copies – People who tend to want to use codicils are those who change their minds about who gets their stuff frequently. Someone did not send a birthday card on time. “Out of the Will!”. Someone else decided to take a lavish vacation. “They would waste my money”. I have had a person come to my office with a dozen codicils written over a few years. That can become confusing. Confusing in the law means Court and cost.
Cost – This is the big reason people consider a codicil. Some think that it is less expensive to go this route than revise the Will. To avoid the dangers I presented above; the codicil should be prepared and executed with the assistance of an attorney anyway. Failure to have an attorney guide the process may very well land everyone in Court at the time of probate. Going to Court in these cases is wasting the money from the estate on attorneys fighting about who gets it because the documents are unclear. It is also totally avoidable.
For an attorney to guide a person through preparing a codicil, they should review the original Will to see how the new document modifies the existing Will. They will look for other areas of the original Will where the text is unclear, circumstances have changed, or the law has been rewritten since the document’s creation. It is roughly the same amount of work to draft a new Will as it is to create a confusing codicil.
In the age of computers, codicils should become a thing of the past, with the possible exception of a well-written fiction screenplay. In order to keep your family out of Court and conflict, skip the codicil.