Codicil

A codicil is a separate document that changes part of an existing will while leaving the rest in force. It is used to make a discrete amendment, such as substituting an executor, adding a beneficiary, or altering one gift, without redrafting the whole instrument.

The important fact about it is a definitional one. Utah's probate code defines "will" as a writing or other record "by which an individual directs the disposition of the individual's estate upon the individual's death" and which is "only effective upon the death of the individual," and then provides that the word includes a codicil, along with an instrument that merely appoints a personal representative, nominates a guardian, revokes or revises a prior writing, or expressly excludes someone from taking by intestate succession. So a codicil is a will. Everything the law requires of a will, including the execution formalities and testamentary capacity, is required of it, and the shortness of the document is legally irrelevant. That is the point at which most homemade amendments fail.

Because a codicil is a will, it has to be executed like one. Minnesota's section 524.2-502 requires that a will be in writing, signed by the testator or in the testator's name by another individual in the testator's conscious presence and at their direction, or by the testator's conservator under a court order, and signed by at least two individuals "each of whom signed within a reasonable time after witnessing either the signing of the will . . . or the testator's acknowledgment of that signature or acknowledgment of the will." A page adding a beneficiary, signed by the testator alone, satisfies none of the witnessing requirement, and the fact that the underlying will was properly executed does not carry across to the amendment. States differ on the formalities, and the definitional point cuts both ways: because Utah's code treats a codicil as a will, and separately admits an unwitnessed will whose signature and material portions are handwritten, a handwritten codicil is admissible there on the same terms. A defectively executed one may also be rescued where the state has a harmless-error section, as Minnesota, Utah and California each do, but only on clear and convincing evidence of what the testator intended, which is a proceeding rather than a formality. What does not change is the starting point: this is a will, not a note about a will.

The label on the document does not decide its effect. A statutory presumption does. Minnesota's section 524.2-507 sets out how a later instrument interacts with an earlier one, and it does so without using the word "codicil" at all. Under subsection (c), the testator "is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate," and if that presumption arises and is not rebutted by clear and convincing evidence, "the previous will is revoked; only the subsequent will is operative on the testator's death." Under subsection (d), the testator "is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition," in which case the later document revokes the earlier one "only to the extent the subsequent will is inconsistent with the previous will," and "each will is fully operative on the testator's death to the extent they are not inconsistent."

So "codicil" describes an intention, and the statute tests that intention against the document's contents. A short amendment that changes one gift makes no complete disposition, so it is presumed to supplement, which is what everyone wanted. A document headed "codicil" that then goes on to dispose of the whole estate is presumed to replace the earlier will entirely, and rebutting that presumption requires clear and convincing evidence rather than a heading. The practical instruction that falls out of this is to be precise about scope: an amendment should say what it changes and say that everything else stands, and it should stop there.

Two consequences of keeping a will and a codicil as separate pieces of paper. Both have to be found, and both have to be admitted, so a codicil that is lost or that nobody knows about leaves the original will operating unamended. And the two are read together, which means an inconsistency between them is resolved by the statute's inconsistency rule rather than by asking what the testator probably meant. Where an amendment is extensive, or where several codicils have accumulated, the reading exercise is the cost, and a restated will removes it by leaving one document to interpret.

Revocation by a physical act sits alongside all of this and is easy to reach for and get wrong. Minnesota's section 524.2-507(a)(2) provides that a will "or any part thereof" is revoked by performing a revocatory act with the intent and for the purpose of revoking it, and defines a revocatory act as "burning, tearing, canceling, obliterating, or destroying," adding that a burning, tearing or cancellation counts "whether or not the burn, tear, or cancellation touched any of the words on the will." That is a route to revoking something, not to changing it. Crossing out a gift may remove it, and the property then falls where the rest of the will sends it; writing in a new beneficiary beside the crossing-out does not give that person anything, because adding a gift is a testamentary act that needs the formalities. States differ on whether partial revocation by act is even permitted, which is another reason the marked-up will is a bad instrument.

1. Decide what is changing, and keep the amendment to that. Scope is what the statutory presumptions are testing.

2. Execute it as a will. In writing, signed by the testator, and witnessed as the governing state requires. Making it self-proving at the same time is worth the extra page.

3. Say what survives. A codicil that confirms the rest of the will is clearer than one that leaves the reader to work out what was left alone.

4. Store it with the will. Two documents both have to be located, and a codicil nobody finds leaves the original operating unchanged.

5. Review whether a restated will is simpler. Once amendments accumulate, the cost moves from drafting to reading, and it falls on the people administering the estate.

A hypothetical, showing the presumption doing the work. Ottilie's 2021 will leaves $50,000 to each of her three nieces, Ana, Bea and Cleo, and the residue to her husband. In 2026 she signs a properly witnessed document headed "First Codicil," which revokes the gift to Bea and directs that Bea's share go to Cleo instead. It says nothing else.

That document makes no complete disposition of the estate, so under section 524.2-507(d) it is presumed to supplement rather than replace. The 2021 will stays fully operative except where the two are inconsistent. Ana still takes $50,000, Cleo takes $50,000 + $50,000 = $100,000, Bea takes nothing, and the residue clause in favor of the husband is untouched because the codicil says nothing about it.

Change one thing. Suppose the 2026 document, still headed "First Codicil," had gone on to say who receives the residue as well, disposing of the whole estate. Under subsection (c) it would then be presumed to replace the 2021 will, revoking it entirely, and the presumption could be rebutted only by clear and convincing evidence. Anything in the 2021 will that the 2026 document did not repeat, including any provision naming a guardian or creating a trust, would be gone. The heading would not save it.

When a codicil is the right instrument

• It handles a discrete change, such as replacing an executor or adjusting one gift, without reopening decisions that are already settled.
• It leaves the original will in force, so nothing that was working has to be re-executed to keep working.
• It is short, which makes it quicker to review and quicker to sign.
• Where a will was made with care and one fact has changed, it puts the change on the record without disturbing anything else.

Where it causes trouble

• It needs the full execution formalities, and a homemade amendment almost never has them.
• Two documents must both survive and both be found; a lost codicil leaves the will operating unamended.
• If it disposes of the whole estate it is presumed to replace the will rather than amend it, whatever it is headed, and that presumption takes clear and convincing evidence to rebut.
• Several codicils turn the estate into a reading exercise, with the inconsistency rule resolving conflicts rather than anyone's intention.
• A marked-up will is not a codicil. Crossing something out may revoke it, and writing something in gives nobody anything.
• Where changes are substantial, a restated will is one document to interpret rather than three, and the drafting cost of the two is no longer very different.