Codicils: What Are They And What Are They Used For?

Malcolm Finney explains the nature of the codicil.

Most people are familiar with the concept of a will but are perhaps less clear as to what exactly is a codicil and how it may be relevant.

Although a person can only leave one will, it may be made up of more than one simple document, although typically many wills are comprised of a single document. Thus, in describing a person’s will, this may constitute a single document (which may, and typically will, describe itself as a will), together with one or more codicils, all of which must be admitted to probate on the testator’s death.

A will is said to be ambulatory, which means that until the death of the testator, it has no effect. 

For example, Tom could make a will leaving his Porsche 911 to his best friend, Bob, but prior to Tom’s death he falls out with Bob and decides instead to leave his Porsche to his brother, Ted. Bob can do nothing about Tom’s change of heart. Indeed, even if Tom had inserted a clause in his will saying the will was irrevocable, he can nevertheless revoke it during his lifetime. Hence, often in TV dramas, a father disgruntled with his son’s attitude is able to threaten to cut his son out of his will unless his son’s attitude changes.

A will can be very short or may extend to many pages. As time passes, a testator’s circumstances will invariably change, sometimes dramatically, which may mean that the will no longer achieves what the testator wants to happen to his estate following his death. 

For example, a new grandson may arrive but grandad’s earlier will has made no provision for him; or, the testator may inherit or win a substantial sum of money and he would like to make some gifts to charity, which previously he couldn’t afford to make; or as is so often these days, the testator remarries, in which case his original will is automatically revoked on the marriage (in which case, without executing a new will he will die intestate and the law will dictate who gets what; not a good idea).

In short, there may be many changes through life which cause an earlier executed will to become out of date/obsolete.

It is at such times that consideration may be given to executing a codicil.

A codicil could be executed which revokes in its entirety an earlier will. It could, instead, revoke only parts, not the whole, of the will, or it could revoke just one or two clauses or even just a word or two. 

Effectively, the codicil is an alternative mechanism by which a testator may change/amend an earlier will without the need to re-write a brand-new will. Thus, in the example of a new granddaughter, Mary, arriving post-execution of grandad’s will, a simple codicil stating that Mary is to be left £150 cash could be added, leaving the rest of the will unchanged. Similarly, Tom (see above) could by way of codicil revoke his gift to Bob and instead leave it to Ted.

In the case of automatic revocation of a will on marriage, whilst a codicil could again be executed, it is probably better that a complete re-write of the will occurs in view of the possible radical change in circumstances which may follow from the marriage. 

It is often thought that the same situation arises following a divorce; however, this is not the case. A divorce simply means that the former spouse no longer inherits under the other spouse’s will, but the rest of the will still stand. 

For example, Brian was married to Barbara. In his will, he left his 50% interest in the marital home to her. They divorce. Barbara no longer inherits the 50% interest in the home. If Brian has not provided what is to happen to this gift, in such circumstances it will be inherited by Brian’s so-called residuary beneficiary(ies), which might be a local charity. This may be the last thing Brian would want to happen. It would therefore have been advisable for Brian to as soon as possible post-divorce to execute a codicil setting out who he wished to inherit the 50% interest in the home 

It is, however, important to appreciate that a codicil is not just a bit of paper but is a formal document, which has to be executed with the same formalities as a will, e.g. it must be in writing; signed by the testator; and duly witnessed. Failure to observe the requisite formalities will cause the codicil to be invalid (and thus of no effect).

For tax purposes, executing a codicil (or re-writing a new will) of itself gives rise to no tax consequences. However, any changes made therein may alter the tax effects on the testator’s death and such effects need to be considered. A codicil is not (as sometimes thought) the same as a deed of variation (the latter only being executed post (not prior to) death).

Before simply re-writing a new will, consider whether a short simple codicil will suffice, which will also save on professional costs.