Join Australia's most dynamic and respected property investment community

Legal Tip 67: Codicil - What is it and Why use one?

Discussion in 'Legal Issues' started by Terry_w, 24th Aug, 2015.

  1. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

    Joined:
    18th Jun, 2015
    Posts:
    9,001
    Location:
    Sydney
    Codicil - What is it and Why use one?

    A codicil is a document which modifies a will. It doesn’t replace the will but changes it by adding or removing gifts, changing executors etc.

    In most cases a new will would be better than a codicil. It would be better to have one consistent document than one modified document.

    Probably the only time to consider a codicil is when capacity is a potential issue. A will is not valid where the testator has lost capacity. They won’t be able to think clearly about the disposal of their property if they are mentally disabled.

    Where the will was done while a person had capacity but modified with a codicil at a later date if it is later ruled that capacity was lacking when the codicil was made then the codicil part would be invalid but the will itself may still be ok.

    This could result in a partial intestacy rather than a full one.
     
  2. KateAshmor

    KateAshmor Victorian conveyancing lawyer Business Member

    Joined:
    25th Jun, 2015
    Posts:
    74
    Location:
    Melbourne
    Terry, I am opposed to codicils because they can easily create uncertainty. Will always suggest to my clients to do a new will. If it's just a minor change, I charge accordingly.

    And in relation to mental capacity: if this is in any doubt, I request two letters from independent GPs to verify the client's mental capacity. This is a standard requirement for all clients aged 70+. It's absolutely essential to do everything possible to ensure the will is enforceable after the client passes away, otherwise I haven't done my job.
     
  3. Terry_w

    Terry_w Solicitor, Finance Broker, CTA Business Member

    Joined:
    18th Jun, 2015
    Posts:
    9,001
    Location:
    Sydney
    hi Kate

    I have never done a codicil and probably wouldn't either. I guess if there is an issue of capacity the last will will be invalid and the previous one valid - as any revocation would be invalid.

    Getting 2 GPs is good practice but still easily challenged. Ideally you would have specialists involved. And take detailed notes which could be used in evidence later.
     
  4. KateAshmor

    KateAshmor Victorian conveyancing lawyer Business Member

    Joined:
    25th Jun, 2015
    Posts:
    74
    Location:
    Melbourne
    Absolutely. Detailed noted are critical. I always run a 'capacity test': a series of questions without any family, beneficiaries or attorneys in the room.
     
    Terry_w likes this.