Codicils and revoking wills

What is a codicil?

A codicil is a testamentary document that amends, adds to, or partly revokes an existing will. It must be written on a separate sheet of paper to the will and must refer to the existing will to be valid.

A codicil needs to be signed, dated and witnessed in the same way as a will, although you don’t need to use the same witnesses as for the original will. It is submitted together with the will when applying for probate so should always be stored with the will. Don’t attach the codicil to the will through, as attaching anything to your will document invalidates it.

The codicil’s effect on the will

A codicil ‘republishes’ the will, ie, 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 you intended to make amendments to the existing will.

A codicil can be used to add a clause to the original will (eg, to leave a new asset to someone or bequeath something you overlooked when you originally drew up your will), or it can also be used to revoke an existing clause and replace it with a new one (eg, if someone named in the will dies and you want to leave the property to someone else).

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.

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

Revoking a will

You can revoke a will anytime during your lifetime as a will only takes effect after your death.

Mutual wills

Often done by spouses or civil partners, a mutual will creates a binding agreement between the two parties which prevents the survivor from changing their will and disposing of the estate in a different way (eg, if the mutual will stipulates that property should go to the children of the marriage, it prevents the survivor of that marriage to change the will if they remarry).

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. There must be evidence that the survivor had agreed not revoke the will and in Charles v Fraser (2010), the court stated that it was good practice to set out the terms of the agreement within the wills.

Marriage/civil partnership

A marriage/civil partnership automatically revokes an existing will. However, if you 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. You must include an express clause stating that it shall not be revoked by the impending marriage/civil partnership.

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

Divorce/nullity of the civil partnership

Divorce or dissolution of a civil partnership does not revoke a will, but an ex-spouse (or civil partner) will cease to be a beneficiary unless the will expressly provides that the bequest should occur even on divorce/dissolution. Gifts to the former spouse/civil partner also fail and, unless there is a substitution clause, those gifts revert to the residuary estate.

The will is not revoked if you separate from your spouse/civil partner. If there is an intention to separate, it is advisable to review, amend or change the existing will to reflect the change in circumstances.

Destruction

A will can be revoked by destroying it provided you intend to revoke the will by destroying it either personally or by some other person in your presence or direction. The will must be completely destroyed (eg, by burning it), as if part of the will remains and your intention to destroy it was not known, it may still be held valid. If the will was destroyed by accident, there is no requisite intention and therefore the will has not been revoked.

If you are not present but there is an intention to revoke the will (ie, the will is kept in the bank’s vault) there must be written instructions from you to the bank manager expressly stating that the will must be destroyed. Without written directions, the will is not revoked.

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