A codicil is a legal document, separate to your will, that contains minor additions or amendments to your will. Thus, in order to draft a codicil, you need to have an existing will.
The Wills Act [1] does not define a codicil, other than saying a will is defined as ‘including a codicil and any other testamentary writing’. Therefore, because a codicil is included in the definition of a will, the codicil needs to comply with the formality requirements of a will in order to be valid; further, the testator must have the intention that the codicil be a testamentary writing.[2] Formalities include:
However, the witnesses to the codicil do not have to be the same people who witnessed the signing of the will.
When would you use a codicil?
A codicil should preferably be used for minor/small changes to the will. For example; changing guardians or executors, further, if a beneficiary is to be added or removed. But it is advised that the testator should not amend the will via a codicil with regard to main assets such as property.
Risks of a codicil
The biggest risk with the use of codicils is that it is a separate document to the will. If the codicil is not stored with the original will, it could be disregarded when the time for administration of the estate comes. This meaning that the additions or amendments that the testator affected in the codicil will not take effect.
Therefore, if you wish to make use of a codicil, ensure that you store the original codicil with the original will, and further inform your executor (in writing) of the existence of the said codicil.
[1] 7 of 1953
[2] Wren v the Master of the Easter Cape High Court
[3] Section 2 of Wills Act 7 of 1953
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