Codicils and Revoking Wills

What is a Codicil? 

A codicil is a testamentary document that is executed in the same way as a Will and is submitted (if any was made) together with the Will when applying for Probate. It can amend, add to or partly revoke an existing Will provided that it refers to the existing Will. 

The Codicil’s effect on the Will

A Codicil “republishes” the Will.

This means that the Will is considered as having been signed and witnessed on the date of the codicil and includes any changes or amendments made by the codicil.  A reference to an existing Will in the Codicil is enough to show that the testator intended to make amendments to the existing Will

If a Will is altered before it is republished, any alteration is validated by the republication.   There is a presumption that any unsigned changes in the Will was made after it was signed and witnessed (executed).  An affidavit of due execution might be needed from the solicitor, legal executive or witnesses who were present at the time the Will was signed and witnessed or when it was republished by the Codicil.

If there are several changes that completely alter the Will, it would be better to make a new Will to avoid any contention after the testator’s death.

A Codicil revives the will.

This means that the Will takes effect on the date of the codicil’s execution, but there must be specific words in the codicil stating an intention to revive the existing Will because it will not be sufficient to merely refer to the previous Will.  A codicil cannot revive a will that is not in existence or has been destroyed by the testator.

A Codicil revokes the will

A codicil revokes the will if the contents of the codicil are vastly different from that of the existing Will or if it does not refer to the previously existing Will.

A codicil can also expressly revoke sections of an earlier will or revoke it completely.  If it so happens that the testator did not include a revocation clause when he made the Will, the Codicil will work as the testamentary instrument that revokes the Will.

Revoking a Will

A Will can always be revoked anytime by the testator/testatrix during their lifetimes as this only takes effect after the testator’s death.

Ways of Revoking a Will

Mutual Wills

Often done by spouses or civil partners, mutual wills is meant to guarantee that the property of the deceased goes to the beneficiaries named in the mutual will.  It is meant to save any inheritance due to the children of the marriage should the survivor of that marriage remarry or enter into a civil partnership. This revokes a previous will based on the rule that a subsequent marriage revokes a will. If the surviving spouse or civil partner makes another will intending to revoke the mutual will, the law will impose a trust on the property specified in the will to prevent this.

Marriage/Civil Partnership

A marriage/civil partnership automatically revokes an existing will, but there are exceptions to this rule.

First, if the testator expected to marry/enter into a civil partnership with a particular person at the time of the Will’s execution, the marriage/civil partnership will not revoke the Will.  However, the Will must have an express clause stating that it shall not be revoked by the impending marriage/civil partnership. On the other hand, if the testator’s intention to marry came after the Will had been executed and he does not do anything to save the Will (i.e. execute a codicil), then the existing Will is considered revoked.

Second, where the testator married/entered into a civil partnership with that particular person and intended that a specific disposition in the will should not be revoked, then that disposition as well as other dispositions in the Will remains. Alternatively, if the testator intended that all dispositions be revoked except for one particular disposition, there must be an express clause in the Will stating so.

A power of appointment in the will is not revoked by the marriage/civil partnership.

Divorce/Nullity of the Civil Partnership 

  • If the testator/trix divorces or nullifies an existing civil partnership, the Will construes that the former spouse/civil partner predeceased the testator/trix and any appointment of this person as the executor or trustee of the Will fails. Gifts to the former spouse/civil partner also fail and unless there is a substitution clause, those gifts will revert to the residuary estate. Divorce or the dissolution of the civil partnership does not invalidate the Will.

  • While the former spouse/civil partner loses the right to apply for a grant, a co-executor who is appointed in the will (if any) is still entitled to the grant, in this case, a grant of letters of administration with the will annexed.

  • The Will is not revoked if the testator/trix separates from the spouse/civil partner.  If there is an intention to separate, it is advisable that the existing Will is reviewed, amended or even changed to reflect the change in circumstances.

Destruction

A will can be revoked by destroying it provided that the testator had the intention of revoking the Will by destroying it either personally or by some other person in his presence or direction.  Destruction must be “the burning, tearing or otherwise destroying the same” (S2 Wills Act 1837).  If the Will was destroyed by accident, there is no requisite intention and therefore the Will has not been revoked.

Supposing the testator is not present but there is an intention to revoke the will (i.e. the will is kept in the bank’s vault) there must be written instructions from the testator to the bank manager expressly stating that the will must be destroyed.  Without written directions the Will is not considered revoked.

If there are any signs of tearing, burning or staple marks in the face of the Will an affidavit of plight and condition must be included with the Will when it is submitted to Probate

As of 1 January 2009, Her Majesty’s Court Service (HMCS) issued a notice requiring applications for a grant by solicitors to include two A4 sized copies of the deceased’s worn Will and Codicil (if any).  It also contains “advice on the required appearance and physical condition of the copies and a warning that the application will be stopped and delayed if it does not comply with the new procedure.”  Where it is necessary to take the Will and/or Codicil apart for copying purposes, a letter should be included with the application explaining this and confirm that the Will has been returned to its original condition.