Law Articles

Considering a codicil? Draft a new will instead.


Dorothy was in the habit of reviewing her last will and testament periodically to see if any changes were necessary.  She updated her will several times through the years.  She decided to update her will again to remove beneficiaries.  She also wanted to change the named executor. 

She researched codicils online and learned that they are used to amend prior wills.  Instead of drafting a new will, Dorothy decided to write a codicil this time.  She simply wrote out the changes on a piece of paper and had a notary public notarize her signature. 

Upon her passing, her family learned that Dorothy’s codicil was not executed properly.  The codicil also failed to identify which will she was updating.  Accordingly, the court rejected the codicil.  Her most recent, validly executed will was admitted to probate without her desired changes.  The executor listed in the will administered her estate and her assets ultimately passed to those beneficiaries she tried to remove.  Dorothy could have avoided this result by simply updating her will rather than trying to amend it with a codicil.

A codicil is a supplement to a last will and testament.  Its purpose is not to revoke a prior will, but to amend, alter, or confirm it.  A codicil does not supersede a will, but becomes part of it.  Together, a will and codicil constitute one instrument to govern an estate administration. 

Codicils were more common in the days before typewriters! Back then, wills were drafted by hand and scriveners did the physical writing of the documents.  Codicils avoided the need to rewrite the entire document by hand when changes were necessary.  Codicils are not as useful in modern times.  Most wills are saved on computers and may be easily updated without the use of a codicil.

As seen in Dorothy’s scenario, codicils also can be problematic.  If a codicil is defective for any reason, it must be rejected.  To be valid, a codicil must be executed with the same legal formalities as a will.  It must be in writing, signed at the end by the person making it, and witnessed by two disinterested witnesses who saw the person sign or heard the person acknowledge his signature.  Although notarized, Dorothy’s document did not comply with Ohio law. 

"A codicil may expressly revoke an entire will or simply part of it and this can lead to ambiguity."  Courts generally are not likely to construe a codicil as a complete revocation of a prior will and will refuse to do so if they can reach any other conclusion by reviewing the documents.  As codicils may be used to revive previously revoked wills, they must clearly identify the will to which they refer.  Failure to do so may result in the wrong will being revived. 

Last, codicils may become separated physically from the will.  An executor may not even know a codicil exists. 

The bottom line is: It's far safer to draft a new will

In most cases, our legal team has found that the cost of drafting a new will is generally the same as a codicil and it avoids ambiguities and disputes later on.  It is important to consult with a trusted probate attorney before making changes to your will.  Laribee & Hertrick, LLC  can make sure that the document complies with Ohio law and will serve your testamentary intent.
Contact an Attorney in Medina, OhioMichael Laribee is a partner in the Medina law firm Laribee & Hertrick, LLP.  This article is intended to provide general information about the law. It is not intended to give legal advice.  Readers are urged to seek advice from an attorney regarding their specific issues and rights.
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