I was talking to someone the other day who wanted to change their Will, which was not originally drafted by me, and asked me if I would do a a codicil for them.
I told them no.
While I would be happy to draft a new will from scratch, I don’t do codicils to wills that were drafted by other attorneys, and I generally don’t even like doing them to Wills that were drafted by me.
What is a codicil?
Quite simply, a codicil is an amendment to a Last Will and Testament. Instead of drafting an entire new will, a codicil merely amends certain sections of the Will. It could be 4 pages, 3 paragraphs, 2 sentences, or even one word.
Back in the days before computers, or even typewriters, long documents like Wills were drafted by hand. While attorneys often did the creating of the documents, the actual copying and physical writing of the documents were done by scriveners (Ah, Bartleby! Ah Humanity!). As a Will could be, and often was, a document of significant length, it did not make any sense to write out a 20 page document in long hand, just for some minor changes. Enter the codicil.
Eventually, the assembling of legal documents moved from being written out longhand, to being typed on manual (and then electric) typewriters. These typewriters had no memory, So once again, without the ability to do a short codicil, a small change to a Will would require a secretary to retype the entire document, instead of a few pages.
But there are problems with codicils.
First, the law is in a constant change of flux. Congress and the state legislatures are always changing the tax laws and the laws regarding probate and real property. Lawyers have to constantly update the “boilerplate” of their Wills and other documents to conform to the changes in the law. If you do a codicil to a Will in which, for example, the testator excludes one of their children, or adds a grandchild, it’s possible that the changes in the law since the last Will will not be incorporated.
While in the past it might have been more efficient to do a codicil that reflects all of the changes, it’s certainly not efficient now. Depending on when the Will was drafted, there may be multiple changes in multiple places, or few changes. If it was a document that I drafted, I would at least know where those changes are. But if someone else drafted it, it would take considerable time to pour through the Will and checking the law — much less time than it would take for me to create a new one that has all of the updated language to conform with the law.
Another issue is the signing of the Will. As I’ve written about before, How you sign a Will Can Be Just as Important as What It Says . If I did not preside over the execution ceremony, I have no idea whether or not the original Will was validly executed in the presence of two witnesses who were in the presence of each other and the testator. If the original Will is invalid, then the Codicil may also be invalid. It’s possible it could be valid by incorporating the prior Will, but again, drafting a new Will is safer.
Finally, in the age of computers, word processors (the computer program, not the human kind), and document assembly programs, there is no reason, for me at least, to do codicils, instead of new Wills. It no longer takes a scrivener or a secretary hours to recreate the document from scratch. Instead, I can use their previous Will to make the changes according to their wishes, and I’ll know where to make changes to the law. The rest of it can just be re-printed, and does not have to be recreated.
So why do attorneys still do codicils? Some do it out of force of habit, in that’s the way it’s always been done. Some are still dictating Wills for secretaries using forms and do not have document assembly programs. And some think that clients prefer a short codicil than a new Will.
But for me, I’d rather be safer and do a new Will, and leave the codicils to Bartleby.