It is important to write a will as you age. But what if you change your decision on how you wish to pass on assets to beneficiaries over time? You may have an additional member in your family after you wrote the original will. Or, one of the beneficiaries may have passed away and you may want to transfer a share of your assets to someone else.
You could write a new will and discard the older version. But the process is not easy when our Wills are long. But there is help at hand. You can amend your earlier will. Such an amendment is called a codicil.
What is codicil?
The Indian Succession Act 1925 defines Codicil as an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will.
Put simply, it is a document signed by the testator (the person writing his Will) and the witnesses to make changes in an existing Will. However, a Codicil is not a standalone document. It is a part of the last Will of the testator.
“When the testator dies, both his original will and the codicil are submitted for confirmation or approval from the court of competent jurisdiction, whereby the probate is procured. The probate so obtained forms the basis for administration of the estate and distribution of the belongings of the testator,” says Aradhana Bhansali, Partner, Rajani Associates. Probate means the copy of a Will certified by a competent court.
If the Will is revoked by the testator himself or declared void by a competent court, then the codicils attached to it also become void as the addendum itself is a continual document and hence with a change in the base document, the continual document loses relevance.
Useful for making small changes
Codicils are useful when you want to introduce small changes in the Will. These would primarily include removal, addition or alteration in assets or the beneficiaries. For example, a Will may have a mention of a particular piece of land that should be given to A. If A dies in the lifetime of the testator then the testator may want to give that piece of land to B. Such a change in intention can be effected by writing a Codicil.
Codicils help the testator to make small changes in the estate plan. When the testator wants to keep most of the Will static but wants to bring in small changes, he/she should be using a Codicil. One can appoint a new executor of the Will using a codicil. One can also provide for some assistance to a new entrant in the family – by marriage or by childbirth. Codicils help you accommodate your changing needs and your family’s dynamic aspirations over your lifetime.
Codicils can also be used when you come across any ambiguity in your Will. Such ambiguity can be done away by providing clarity in a codicil. For example, if a Will states that the testator’s jewellery be divided among his/her daughter and daughter in laws, a vague mention may lead to disputes. A codicil can be written, clearly mentioning each beneficiary’s share and the specific type of jewellery.
Involved writing process
Though codicil is aimed at effecting minor changes, you have to follow the same process that you will follow while making a Will. You will have to write and sign the Will. You need two witnesses’ signatures. You may want to record this process using a camera, though it is not mandatory.
“A codicil to a will does not revoke the Will, but merely records the modifications (in part or in one or more parts) of the Will. Hence, being an extension or addendum of the Will, the process is similar to that of making a Will. Hence the first para would provide a reference to the original Will. Then, giving reference to the concerned paragraph, its replacement should be stated. In case any specific paragraph needs to be deleted, the same should be mentioned clearly and the replacement paragraph with all details must be provided,” says Rajat Dutta, founder of Mumbai based Inheritance Needs Services.
Codicil should be an elaborate document and one should not leave scope for speculation. “If you want to make a codicil, ensure that you clearly mention the intention behind the changes you want to introduce,” says Neha Pathak, Head – trust and estate planning, Motilal Oswal Private Wealth Management. This is especially true when you are changing beneficiaries. Clearly mentioning the reasons behind writing a codicil will reduce the chance of litigation at the later stage.
Registration of a Will is optional and so is the case with the codicil. However, you should be consistent in your actions. “If the Will is registered, a codicil should logically be registered. The rationale for the same is to imbibe authenticity of the codicil and also expect a non-litigation scenario of a registered Will and a registered codicil,” says Dutta.
You have to attach all codicils along with your Will. You can have as many codicils as you wish throughout your lifetime, but make sure you follow the process mentioned earlier. If the codicils are misplaced, then there is a chance that the executor may not come to know about your changed intentions and may not fulfil them at all.
You should inform your family members, executors and other interested individuals about the existence of such codicils and their whereabouts.
Not useful for structural changes
As stated earlier, codicils are to be used for minor changes. However, when you go for structural changes, it is better to write a new Will. “When a Will requires an overall change or the circumstances warrant changing most of the disposition or bequest, a new will is required by revoking the earlier will,” says Bhansali. She further adds that in cases of major changes, a codicil will not serve the purpose and may lead to disputes in the future among beneficiaries.
For example, if A has two sons and he has written a Will to bequeath his estate to his two sons equally. A’s wife passes away and he remarries. His wife has a daughter from her first marriage. Now he decides to bequeath all his wealth to his stepdaughter. It is a big change. This is not just a minor change in beneficiaries. In this case, a codicil could create complications later. A new will works better in such cases.
Many times, individuals bring in many changes to their last Will by writing multiple codicils. This changes the structure of the Will without the testator knowing it. In such a scenario, a new Will is a better option.
If one has written too many codicils, then it is an operational nightmare for the executor at the time of execution of the Will. To avoid such a scene, it is better to consolidate all your wishes into a new Will. “While making a codicil, you have to follow the same process that you follow while writing a Will. Hence, there isn’t much difference in the efforts involved. And hence, it makes sense to go for new Will over a codicil,” says Neha Pathak.
Codicils must be used sparingly. Too many of them in a Will do not serve the purpose. In such cases, it is better to go for a new Will.