What is a codicil and how does it affect the process of contesting a will?

Published 02 Mar 2016

There are a range of reasons why people might decide to contest a will. Whether they feel they weren’t adequately provided for or were left out entirely, it’s important to ensure an estate has been distributed correctly.

One issue that can complicate these processes, however, is if a will that has been tampered with or seems to have changed in a manner that creates suspicion. While undue influence during the will making process is  common and can complicate the estate distribution process, there are other changes to these documents that can lead people to contest a will.

What is a codicil?

Changing a will is a difficult process, and one that many people may not have the time, energy or finances to follow through with. People who believe they are likely to make a number of changes to their will over a long-term period often choose to create a codicil.

This document is similar to a will in a number of ways, but allows for people to make much more regular changes in an easier manner. A codicil is intended to allow for people to make minor adjustments to their will, however substantial changes may still require a will to be updated.

How does this change the way people contest a will?

Just like when people update their regular will, changes to a codicil need to adhere to certain rules and regulations to ensure an estate is distributed correctly.

In a similar process to updating an existing will or creating a new one, a codicil needs to be presented in writing, witnessed and signed by two people as well as the testator or testatrix themselves. If any of these conditions aren’t met, it could be an indicator that the will is invalid and the estate may be distributed incorrectly.

Can they make a will invalid?

If a codicil is created incorrectly, it can have significant consequences for the will it refers to. It’s important that a codicil does not make any reference to cancelling past wills, as this may also render the current one invalid.

When it comes time to contest a will, it’s important to ensure the testator hasn’t also created a codicil that further complicates these processes.

To find out more about contesting a will, contact the team at Gerard Malouf and Partners.

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