Risks of DIY Codicils

What is a Codicil?

A Codicil is a formal document which has the purpose of amending or altering a clause or several clauses in an existing Will.

Whilst the idea of a Codicil seems like a simple, cost-effective update to an existing Will, which eliminates the need to pay for a whole new Will, the risks of a dispute with your estate after you die and in the worst case scenario, your wishes being invalidated, increases significantly with Codicils, especially when the Codicil is a DIY job.  Errors in Codicils can have expensive and devastating consequences.

So, what are some of the common errors made in DIY Codicils?

Below are some of the more common errors we see in DIY Codicils:

1.          The execution of the DIY Codicil has not been done correctly.  In order for a Codicil to be valid, it has to have been executed in accordance with the Wills Act 1997 and has the same strict signing requirements as a Will.  Missing signatures, or ineligible witnesses, such as a beneficiary or a spouse, may invalidate the Codicil or result in a costly dispute;

2.          The wording in the Codicil is ambiguous or triggers competing interpretations.  DIY Codicils, when written by the testator, is often written without using the proper legal terms, which then creates ambiguity or uncertainty on what the intended distribution of certain asset/s are.

For example, a testator’s Will distributed their residential home equally between their two children.  The testator wrote a Codicil themselves, which used the words “my spouse should take possession of the house and property we live in and no other person shall have any claim on this property”.  Whilst it may seem obvious that the testator intended to alter their Will to distribute their residential home to their spouse, the term “shall take possession of” is ambiguous and could give competing interpretations;

3.          The use of imprecise descriptions when referring to asset/s in a DIY Codicil could also result in uncertainty and in order to determine the proper intended distribution of certain asset/s, the Executor may be required to obtain expert advice from a Barrister and for more complex matters, or in order to avoid a costly dispute, an order from the Court to confirm the proper intended distribution of such asset/s may need to be sought by the Executor;

4.          The testator’s capacity and concerns of undue influence.  DIY Codicils can spark concerns with the Supreme Court of the testator’s capacity at the time the DIY Codicil was executed or undue influence.  With DIY Codicils, there is rarely evidence documented on the testator’s capacity, independence or instructions.  The absence of any notes or documentation evidencing that the testator had capacity or was not under undue influence at the time of executing the DIY Codicil can result in a challenge to the Codicil for lack of capacity or undue influence.  A challenge on capacity or undue influence is not only costly and results in significant delays, but it could also invalidate the Codicil altogether;

5.          Multiple versions or lost Codicils.  DIY Codicils are often not stored with the original Will, which can create uncertainty about whether the Codicil located is the latest version and in some cases, the Codicil is not located or even known of;

6.          The Codicil fails to refer to the original Will (or fails to use proper wording when referring to the original Will) which can result in invalidation of the Codicil altogether; and

7.          The Codicil fails to revoke or delete clauses from the original Will that should have been revoked or deleted.  If a Codicil intends to revoke or delete a clause in the original Will and fails to clearly express the revocation (or does but the wording used is ambiguous), serious construction issues can arise due to the inconsistency of the provisions of the original Will and the Codicil.  This is likely to result in a costly dispute over the testator’s final intentions or could invalidate the Codicil.  As mentioned at point 4 above, DIY Codicils rarely document the testator’s instructions and to prove the testator’s final intentions in the case of a dispute about this would be very difficult if documents evidencing the testator’s instructions on the revocation cannot be produced.

Codicils often create more risk than they save in costs or time and whilst it may save you costs whilst your alive, it will likely result in significant fees being incurred for your Estate after you die.  It is strongly recommended that if changes need to be made to your Will, that a whole new Will is prepared and by an experienced Lawyer to ensure your wishes are not misunderstood or invalidated.

If you require a new Will or advice on whether your current Will reflects your wishes, please contact our office on (03) 9707 1155 or via email at admin@wslegal.com.au.