One of the most important elements in your life as a person is executing your last will and testament. Your will ensures that every asset you have acquired will be distributed on your death in accordance with your desire and design. The last will provides all the details the executor will need to execute your death wish. In many instances, you may decide to include or exclude individuals or organizations from benefitting of your shares and assets.
For some reasons, you may decide to alter the specific content of your will with time. During this time, one of the best options to make is to amend a section of the will without having to rewrite the entire document by using an instrument called codicil.
WHAT IS A CODICIL?
A codicil is a legal document that you can use in the amendment of a will and can allow you to alter the parts or elements of the will without having to write the will afresh. A codicil is only applicable where the changes that are to be enacted are minor.
WHO CAN CHANGE A WILL BY A CODICIL?
It is only the creator of the last will who is also referred to as the testator that can alter the content of the last testament. This implies that without the testator, no other person can make changes to the existing will.
WHAT ARE THE STEPS TO WRITE A CODICIL?
In writing your codicil, your name, address and date of enactment of your previous will must be clearly stated and then proceed to list your changes in the affected clauses. However hereunder are the steps that are necessary if you want to prepare a codicil.
- Read your original will and note the parts you intend to amend and consequently ensure that the copy of the will in your possession is the latest and original one.
- Provide your codicil with a suitable title.
- 3. Write the first paragraph by stating clearly your name, residence, and state of mind. Stating clearly that this amendment shall override any previously existing part of the will as amended.
- 4. Identify the clause that you intend to amend, remove or add.
- Write to acknowledge that your codicil will overrule any previous portion of your will.
- Reaffirm your will by writing “I hereby affirm and republish all aspects of my will dated [insert the date]”
REASONS YOU MAY ALTER YOUR WILL BY A CODICIL
Below are some of the reasons you may want to rewrite your will or enact a codicil to your existing document:
- Beneficiaries are to be changed or others will be added
- Separation or divorce
- Either the executor of the will is dead or is no longer needed.
- Marriage or authorized civil partnership
- Property or money inherited from another
- Change of funeral or burial arrangements
- Certain tax changes that must be taken care of in the will to protect the beneficiaries.
- Alterations to the needs of the family especially where the guardian of a minor is to be replaced.
- Changes in your financial life – for instance changes in assets and liabilities.
HOW IS CODICIL EXECUTED?
Just like will, every codicil must undergo processes of verification before it is executed which include:
- It must have the same legal requirements as the original will which include the signature of the testator and the impartial witnesses.
- It must be administered in same standard as a will.
Codicil states the aspect of your life that has been altered and must be stored in the same place as a will.
CAN CODICIL BE REVOKED?
Yes. you can revoke your codicil by following the same procedures you used in its drafting. A codicil that has been revoked will assume the status that it was never written. A codicil can be revoked when you discover that the changes you made is no longer fitting with the reality. However, it is better you go for a new will if you are making major changes in the document.
MAKING OF MAJOR CHANGES IN A WILL
In a situation that the changes you will make in your will are substantive such as marriage which means an additional beneficiary to your will, you should go for a new will altogether. If you are cutting off an existing beneficiary or vice versa, just plan to revoke the previous will and introduce the new one. In some jurisdictions, simply writing “REVOKED” on each page and signing with your initials will be the end of such a document.
WHAT IF YOU HAVE DRAFTED MULTIPLE CODICILS?
If you have drafted more than three codicils in the past and you are now planning to draft another, why not consolidate the changes and make a new will? This will make the work of the executioner easier because the documents will be in one piece instead of separate parts.
In addition to this, the court will be more apt to approve a single document as your final wish than numerous pieces of paperwork that might introduce some ambiguity to your intentions.
If your will appears to be confusing, the judge may declare it invalid or may decide to uphold some of your codicils and jettison the others. If your will is rejected by the court, it is the same thing as having lived and died without a will to your honor.
Your properties will be inherited by your next of kin based on the local laws even if it was not your original intention.
ADVANTAGES OF A CODICIL
- Drafting a codicil is cheaper than rewriting the will completely.
- You do not have to register a codicil as a new will.
- There is no limit as to how many codicils you can add to your will.
DISADVANTAGES OF A CODICIL
- When administering an estate and a copy of the codicil has gone missing, such part will not be taken into consideration.
- Where the number of codicils was much and one is yet to be found, it will be difficult knowing the main will of the principal.
- In situations where the codicil fails to acknowledge issues like inheritance tax, the old will may not be considered appropriate.
- The more the codicils you have, the more complicated issues might be upon your death.
GENERAL TERMS OFTEN USED IN A CODICIL
- Amendment: this is an official change that has been made to a document.
- Beneficiary: this is the individual whose name appears in the will as the intended recipient of the assets.
- Jurisdiction: the legal region or authority to hear a case or enforce justice.
- Probate: this is the authentic copy of the will that has been validated by the court.
- Probate court: this is the part of the judiciary that oversees all matters that are related to wills, estates, guardianship, trusts and much more.
- Testator: this is the owner of the will or the creator of the document.
WHAT IS THE MEANING OF WILL REGISTRATION?
Will registration is the depositing of the documents of your will with the office of the sub-registrar and obtaining a certificate of registration for the document deposited. Registration of a will is not compulsory and at any time the testator can decide to revoke the document or the codicil.
WHO IS QUALIFIED TO REGISTER A WILL?
A person who is qualified to make a will in accordance with the law can register his will.
WHY SHOULD YOU REGISTER YOUR WILL?
The reason that you must have your will registered is that it prevents the authenticity of the will from being questioned by any party. You should note that the content mentioned in the will are not validated but the document itself is what the registration authenticates.
IS STAMP DUTY APPLICABLE TO A WILL?
There is no stamp duty levy on a will in India during the processes of registering a will. However, a registration fee will be paid of which the amount is based on the area of jurisdiction.
WHAT IS THE PROCEDURE FOR REGISTERING A WILL?
To register a will, visit the sub-registrar’s office in your state.
WILL EVERY SUBSEQUENT WILL BE REGISTERED AFTER THE REGISTRATION OF THE FIRST WILL?
It is however recommended to register each new will but it is not a requirement that it must be done.
WHEN CAN ONE APPLY FOR A PROBATE?
On the death of the testator, the will’s executor or the deceased heir can pray the court for to grant a probate. The court will seek for any objections regarding the will from the other beneficiaries. In situations where there are no objections, the court will grant the probate which is the copy of the will that has been authenticated by the court and is an evidence of the true copy of the will.
WHERE CAN I KEEP MY CODICIL?
Your codicil must be stored in the same safe where your will is kept. If your will is filed in the probate court, you must file in your codicil too. You can keep a copy too and can give it to someone who has a copy of your will.
WHAT ARE THE OPTIONS AVAILABLE WHEN REGISTERING A WILL?
The two options you will be offered to choose either of them on registering your will are open will or sealed will. A sealed will can only be opened after the death of the testator while an open will can be accessed by any person. After the death of the testator, any person can get the original copy of the will from the office of the sub-registrar on producing a copy of the testator’s death certificate.
IS THERE A TIME LIMIT TO THE REGISTERING OF THE WILL?
- You can register your will at any time even after the death of the testator in accordance with the provisions of the 1908 Registration Act.
SAMPLE FORMAT OF A CODICIL
CODICIL TO THE LAST WILL AND TESTAMENT OF ————[insert testator’s name]
I, ——- residing at ——– city—– state——- being of sound mind, declare this codicil to my last will dated ——— with effect from this day —— of —-
Article ——– (section to be amended) of my last will and testament shall be modified to read ———————————————————————————————————————————————————————-
Article ——– of my last will is completely removed
Article ——– of my last will and testament shall be added and now reads —————————–
Testator’s signature ———–
Witness’ name and signature —–
Witness’ name and signature —–