Oftentimes, potential clients tell us they have a Will (excellent!), but that they would like to make a couple small changes to it. So, they ask, can they simply amend the Will, instead of having a whole new Will drafted? Whether these people know it or not, they are requesting a codicil to their Will.
According to Black’s Law Dictionary, a codicil is a supplement or addition to a Will that may explain, modify, add to, subtract from, qualify, alter, restrain, or revoke provisions in an existing Will. This means that, to the extent not modified by the codicil, the previous Will remains in full force and effect. To be sure, the portions of the original Will not changed by the codicil should be republished upon the signing of the codicil to be clear that the other Will provisions are still in effect and that the intent of the testator is preserved.
Valid Codicils
In Minnesota, statues define a Will as including codicils. Therefore, a codicil must meet the same execution requirements as are needed for a valid Will. The codicil, like a Will, must:
- Be in writing
- Signed by the testator or in the testator’s name by some other person in the testator’s presence and by the testator’s direction, and
- Be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the codicil.
When to Use Codicils
The general rule of practice is that if the changes to the Will are minor, then a codicil should be completed. What is considered a minor change?
- Changing your nominated Personal Representative
- Changing your nominated Trustee
- Adding or taking away a Special Gift
Additionally, only one, maybe two codicils should be executed. If too many codicils are executed, then confusion and errors are more likely to occur. Also, sometimes simply redrafting a Will is often easier and less expensive than having multiple codicils. Therefore, codicils should be used sparingly.
As always, be sure to contact an estate planning attorney in your area if you’re considering needing a codicil to your Will.
