Should I write a new will or make a codicil?

man and baby at laptopWhen life (and legislation) changes, which is best? Linda Cummins explains the pros and cons of each option.

While your will only comes into play when you die, once made, it should by no means be regarded as done and dusted until you breathe your last.

This is simply because, once made and validly executed, your will is often only a snapshot of your life and wishes at the time it was made – and, as we all know, things change.

Having tried your utmost to make the best provision you can for your nearest and dearest, and those who follow after (as well as choosing the right people for the roles of executors, trustees and guardians), an annual review of your will (yes, that’s how often you should do it) may show that you need to make changes.

What kind of changes mean I should alter my will?

These are some of the changes I often see in my clients’ lives:

  • one of the executors has lost capacity
  • the guardians have divorced
  • two of the pecuniary legacy beneficiaries have died, and they’ve fallen out with the other one
  • additional nieces and nephews have come along
  • they’ve changed their mind about their chosen charity to include in the gift of residue, and added to that, changed their address

In addition, many people do not realise that marriage will revoke an existing will, if it has not been made in contemplation of that marriage.

As tempting as it may be, handwritten, unattested amendments and crossings out to the will are a huge no-no, and should never be done or encouraged.

So, what are your options?

As a result of these kind of life changes, you can:

  • make a codicil to your existing will
  • make a new will

Making a codicil

What is a codicil?

A codicil is a testamentary document, separate to the existing will you have made, which amends or adds to the will. It can also revoke parts of the will and make new provisions.

Being ‘testamentary’ means it is a document that is intended to have the same effect as a will, so strict rules do apply when creating and executing a codicil. For example, it should be signed, dated and witnessed by two independent people in your presence, and in each other’s. The witnesses do not need to be the same witnesses as for your original will.

The codicil must be kept with the will to which it refers, but it must not be physically attached to the will, as that can invalidate the will itself.

What are the pros of making a codicil?

  • A codicil is sometimes a cheaper and quicker way to make small or minor amendments to the will, such as a change of address, inclusion or alteration of a legacy, or a change of guardian or executor.
  • You can make more than one codicil.

What are the cons of making a codicil?

If the rules of construction and execution are not followed, the codicil may be invalid, or it can revoke the will entirely. So, it is crucial that the codicil is professionally drawn up and kept safely with the will to which it relates.

The codicil could be lost if not placed with the will for future reference, and its existence is unknown to the executors of the will. As a consequence, the intended amendments under the missing codicil will not be observed, which could result in claims being made against the estate or the executors personally, by disgruntled ‘beneficiaries’.

Having more than one codicil can cause problems if one of the codicils is mislaid or goes missing.

Making a codicil, rather than carrying out a full review of your current situation, as would happen with a new will instruction, may not necessarily take account of changes in legislation. Being aware of any such changes, particularly with regards to potential inheritance tax liability, could affect the estate planning decisions and the gifts you wish to make.

Make a new will

What are the pros of making a new will?

A full review of your current financial and personal position is usually undertaken when instructions to make a will are given to your solicitor. As such, the solicitor is able to advise you on the current law applicable to your circumstances, or refer you for expert advice, so that you can be confident that the will is valid and relevant to your current circumstances.

Making a new will, which includes a suitable revocation clause, will revoke your current will and can revoke all former codicils, too. Taking comprehensive instructions to make a new will can also demonstrate the tests for testamentary capacity have been complied with and satisfied, particularly if the intended changes are significant and could have a major effect on the former/new beneficiaries.

What are the cons of making a new will?

Making a new will may cost a more than a codicil. It could also take longer to make.

In summary, what you should bear in mind…

Photo of Linda Cummins It’s clear to see that complications can occur with poor construction of the codicil and testamentary documents being confused, mislaid, or not stored safely.

In addition, most people do not review their wills on a regular enough basis. To add a codicil over the top of what could now be an inappropriate or irrelevant will, and not taking full account of current legislative and personal and financial changes, could be a recipe for disaster, and could cost your estate far more in the long run, than the price of new will now.

About the author

Linda Cummins is head of wills and probate at GWlegal, @GWlegal.

Images: Getty Images, GW Legal