What is a Codicil? The Risks of Amending a Will in NSW
What is a Codicil? And Why You Probably Shouldn’t Use One
Introduction
In our recent series on Estate Planning, we explored the critical steps of protecting your legacy. We’ve covered [How to Update a Will], the dangers of [Dying Without a Will], and what happens during a [Will Dispute].
A common question that arises from these discussions is: “I only want to change one small thing—like swapping an Executor or adding a bequest for a grandchild. Do I really need a whole new Will, or can I just add a note?”
This “note” is legally known as a Codicil. While it was once a standard legal tool, modern technology and recent court cases have changed how lawyers view it. Here is a comprehensive guide to Codicils in NSW, how they work, and why LawDocs generally advises against them.
Definition: What Exactly is a Codicil?
A Codicil is a testamentary document used to amend, add to, or revoke part of an existing Will. It doesn’t replace the Will; it sits alongside it. Think of it as an “attachment” or a “postscript” (P.S.) to your main legal document.
A Brief History: Why do Codicils exist? In the past, before computers, Wills were hand-written or typed on manual typewriters. Drafting a 20-page document was expensive and labor-intensive. If a client wanted to change one name, re-typing the whole document was a nightmare. Lawyers created Codicils as a practical shortcut to save time and money.
The Modern Reality: Today, Wills are digital. Creating a fresh, clean document takes a lawyer minutes, not hours. The “cost-saving” argument for Codicils no longer applies, but the risks associated with them remain high.
The Strict Legal Requirements in NSW
Many people mistakenly believe a Codicil is less formal than a Will. This is false.
Under the Succession Act 2006 (NSW), a Codicil is defined as a “Will” for legal purposes. This means to be valid, it must meet the exact same formal requirements (Section 6):
- It must be in writing.
- It must be signed by the testator (you).
- It must be witnessed by two people who are present at the same time.
Crucial Warning: If you scribble a change on a piece of paper and sign it without witnesses, it is an “Informal Will.” Your Executor will likely have to spend thousands of dollars in the Supreme Court just to prove you meant it.
The Three Major Risks of Using a Codicil
At LawDocs, we have seen many estates face delays and extra costs due to Codicils. Here is why they are risky:
A Codicil is a separate sheet of paper. Over the years, it is incredibly common for the original Will to be stored safely, while the Codicil—often created years later—is misplaced, filed in a different envelope, or inadvertently thrown away.
- The Consequence: If the Codicil is lost, your update (e.g., removing an ex-partner) is lost with it. The court will grant Probate on the original, outdated Will.
H3: 2. The “Probate Requisition” Nightmare
When your Executor applies for Probate (the court’s approval of the Will), the Supreme Court of NSW is very strict about physical damage to a Will.
- If you use a paperclip or staple to attach the Codicil to the Will, and it leaves a mark or hole, the Registrar may issue a “Requisition” (a formal query).
- They will ask: “Was another document attached here? Is a page missing?”
- Your Executor then has to file additional Affidavits to explain the marks, delaying the process and increasing legal fees significantly.
When your Executor applies for Probate (the court’s approval of the Will), the Supreme Court of NSW is very strict about physical damage to a Will.
- If you use a paperclip or staple to attach the Codicil to the Will, and it leaves a mark or hole, the Registrar may issue a “Requisition” (a formal query).
- They will ask: “Was another document attached here? Is a page missing?”
- Your Executor then has to file additional Affidavits to explain the marks, delaying the process and increasing legal fees significantly.
A Codicil must reference the clauses in the original Will perfectly.
- Example of Conflict: Your original Will says, “I leave my Ford Falcon to my son.” Years later, you buy a Toyota and write a Codicil saying, “I leave my car to my daughter.”
- The Problem: Does the Codicil replace the specific gift of the Ford, or just “cars” in general? Did you mean all cars?
Codicil vs. New Will: A Comparison
Feature | Codicil | New Will |
Purpose | Minor amendments only. | Any change, large or small. |
Clarity | Requires cross-referencing two documents. | 100% Clear (Single document). |
Safety | High risk of being lost or separated. | Secure (Old Will is destroyed/revoked). |
Executor’s Job | Harder (Must manage multiple papers). | Easier (Follows one instruction). |
Probate Cost | Potentially higher (due to complexity). | Standard. |
Legal Cost | Similar to a new Will. | Affordable fixed fee. |
When is a Codicil Actually Appropriate?
While we generally advise against them, there are limited scenarios where a Codicil might be used:
- Emergency Situations: If a testator is on their deathbed in a hospital and needs to make a critical change (like appointing a guardian) immediately, and there is no printer available for a full Will.
- Complex Trusts: If the original Will contains extremely complex Testamentary Trusts that cost thousands to draft, and the change is purely administrative (e.g., correcting a typo in an address), a Codicil might be cost-effective—but only if drafted by a specialist.
How to Change Your Will Correctly
If you need to update your Will, the “Gold Standard” process is:
- Consult a Lawyer: Discuss what changes are needed.
- Draft a New Will: Your lawyer will generate a fresh document that includes a standard “Revocation Clause” (e.g., “I revoke all former Wills…”). This legally cancels all previous messy documents.
- Sign Formally: Sign the new Will with two witnesses.
- Destroy the Old Will: Tear up the old original to avoid confusion for your family later.
Frequently Asked Questions (FAQ)
You can, but it is risky. DIY Codicil kits often fail to account for specific NSW laws regarding “residuary estates” or “survivorship periods.” If you make a mistake in the wording, the court may invalidate the gift or even the whole Will.
No. The witnesses can be different people. However, they must still meet the legal criteria: they must be over 18, sighted, and not be beneficiaries (or spouses of beneficiaries) in the Will or the Codicil.
Please do not do this. In NSW, removing a staple leaves holes that the Supreme Court examines forensically. They may suspect a page has been removed or substituted. This triggers a “Requisition,” forcing your executor to pay lawyers to write affidavits explaining the staple holes. Keep them in the same envelope, but loose.
Not necessarily. While the drafting time might be slightly less, the cost of executing it (meetings, signing, witnessing) is the same. More importantly, the potential cost to your estate in Probate fees later often outweighs any small saving now. A new Will is a better investment.
Don’t Let a “Quick Fix” Cost Your Family Thousands.
A Codicil might seem like a shortcut, but it often leads to expensive Probate delays and confusion.
At LawDocs, we make updating your Will simple, affordable, and legally secure.
✅ LawDocs: Estate Planning Experts
Get a fresh, valid Will drafted by professionals. Avoid the risks of DIY amendments.
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