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From the Lawyer’s Desk

 

Codicils (what are they?) and Why a Practising Lawyer Hates Them

By Reg Newell, solicitor

 

A codicil is “a testamentary instrument executed in the same manner as a will and is required to be executed and made as an additional or supplement to a will” (NZ Law Dictionary).In plain English, it is a document which is added to a will.

Many charities are advising their supporters that a codicil is an option for the creation of a bequest instead of writing out a whole new will.My advice is NOT to suggest this.The rationale for codicils predates word processing.

Prior to the introduction of word processing it was essential to produce a will document that was completely free of error and was pristine. One mistake and the whole page would need to be redone. The introduction of word processing, which allows any mistake or addition to be readily dealt with proved to be a total game changer.

It is my contention that in most cases it is simply easier to prepare a fresh, word processed will rather than muck about with a codicil.The danger with a Codicil is that it may, being a later document, override the provisions made in the will, resulting in confusion, misinterpretation and unintended consequences. It is much better to re-do the will as a whole document, thereby clearly encompassing the wishes of the testator or will creator.Also, as a practising lawyer I can also tell you that a codicil is a bad idea for a number of reasons.

A codicil (or a supplement to a will) is a pain for a lawyer because it makes an application for probate of the will (i.e. the granting of the recognition by the High Court that this is the last will) much more complex . In applying for probate the lawyer must make references to the will and the codicils. It increases the chances that the later codicil may be out of step with the original will.

In these days of electronic word processing, it is simpler and easier to redo the whole will.I have noticed that a number of charities listing on our online bequest listing site (QuestForABequest) suggest that their bequestors simply provide a codicil to their will. Presumably thinking that the bequestor is looking to save costs. This logic is dubious however.

A new provision in a will would require a competent lawyer to review the existing will and take full instructions and craft the changes that the testator seeks, taking full account of how the changes would impact on the existing will. The witness requirements are exactly the same for both wills and codicils.In terms of the lawyer’s time, there would be no real saving.

In the 40 years I have been drafting wills in my own legal practice, I have not drafted one single codicil. I see them as unnecessarily dangerous and the risk of unintended consequences as being significant.I strongly recommend that charity fundraisers remove any references to codicils in their promotional material, their brochures and advise their bequestors to consult with their lawyers about including your charity name in a bequest.

 
 
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