If you have an existing Will and are looking to make changes, you may see a codicil as a quick fix. But you need to understand that a codicil is a type of legal document and why it may not be the best option, especially with South African law in mind.
The History of Codicils
Codicils came about when rewriting a Will was a big deal. The word “codicil” originates from the Latin term for a small writing tablet, highlighting its role as a separate document that modifies an original will. Influenced by the UK’s Wills Act of 1837, codicils allowed testators to make small changes without having to re-write the whole document.
In South Africa the Wills Act 7 of 1953 governs estate planning but the practice of using codicils has continued much as it did in the past. The word “codicil” itself means a small addition, a concept that has stuck through time, despite the changes in the law.
In 1837, if you wanted to write a Will it would have looked like this
From Handwritten to Digital Documents
Initially, Wills were handwritten and changes were a hassle. The introduction of typewriters made it slightly easier but the advent of digital technology has made codicils largely redundant for technical reasons. Technology allows you to re-write your entire document in seconds, far outpacing the old codicil methods.
What are Codicils in an Existing Will
A codicil is an amendment to your existing Last Will and Testament. It’s a legal instrument to change or clarify specific clauses in your Will. In South Africa this requires strict legal protocols, just like drafting a brand new Will. Codicils must be signed by the testator in the presence of two independent witnesses, who cannot be beneficiaries, to be legally valid.
South African Law
South African law requires witnesses to be at least 14 years old and competent. They must be fully aware of what they are signing. This maintains the integrity and transparency of the Will and protects all parties involved.
The Problems with Handwritten Changes
Handwritten changes look tempting but often lead to disputes. While South African law recognises handwritten Wills (holographic Wills), any informal notes can be challenged. Such changes must be initialed by both the testator and witnesses to maintain the document’s legal status.
Limitations of Codicils
Codicils are best for small changes like changing an executor or adding a small bequest. They are not suitable for changes concerning your main assets, such as property, as this can lead to ambiguities and complicate the probate process. For major changes, like adding or removing beneficiaries or altering significant provisions, it is important to create a new will instead of relying on a codicil.
Modern Solutions and Technology in Will Drafting
Today both lawyers and individuals have access to advanced software for Will drafting. This technology makes creating Wills easier and amendments and updates far less of a hassle. Lawyers in South Africa use this technology to manage their clients’ estate planning.
Why Multiple Codicils Cause Confusion
Using codicils can create confusion and add unnecessary complexity. Each new codicil introduces the possibility of conflicting terms or instructions and muddies the testator’s intentions. This gets worse with multiple codicils over time, which is why it’s often better to draft a new Will altogether.
Online Will Services
In the digital age, using an online service like LegalWills.co.za offers a simple process to create and manage Wills. These services allow you to draft documents that are tailored to your specific needs and comply with South African law. They give you easy access to update and modify your Will without having to use cumbersome codicils.
How to Update Your Will in South Africa
When updating your Will consider the following options and their implications:
- Don’t Handwrite Changes: Although legal, handwritten changes are full of legal pitfalls. Witnessing requirements apply so this is less convenient or reliable.
- Use a Codicil for Small Changes: Use this for simple and clear changes, remember the formalities are the same as drafting a new Will. A codicil must be signed and witnessed in the same way as the original will, but it does not require the same witnesses. Be mindful of how many codicils you use, as multiple codicils can lead to contradictions and confusion, potentially risking the effectiveness of your will.
- Draft a New Will for Big Changes: This will ensure everything aligns with your current situation and intentions and you have a clearer and more concise document.
Why You Must Keep Your Will Up to Date
Your Will must reflect your current wishes. Many South Africans put off writing or revising their Wills because of the misconception that estate planning is permanent. Writing a Will is not a one off task, life changes require ongoing updates.
It is crucial to destroy an old will when drafting a new one to avoid confusion for executors. Major life events like marriage, birth or financial changes should prompt an immediate review of your Will. Appointing or changing executors, guardians or beneficiaries requires legal attention to ensure your wishes are executed correctly.
Write Now, Update as You Go
The idea of putting off writing your Will because of future changes is flawed. Life is uncertain and your Will could become outdated at any moment. Use the tools and services available to draft a Will today and update it regularly so it remains up to date and reflects your current situation.
A codicil acts as an amendment to the original will and must adhere to the same legal formalities. Keeping both the codicil and the original will up to date is crucial to ensure that your wishes are accurately reflected.
Online platforms like LegalWills.co.za make both creating and updating easier. By managing your Will online you avoid codicils and have peace of mind and security for yourself and your beneficiaries.
Estate Planning for the 21st Century
Don’t let the need for updates scare you. The truth is a flexible and easy to update Will is far better than cumbersome codicils. Write your Will today and enjoy the modern convenience of easy updates. So you can live with confidence knowing your estate plan is secure and reflects your wishes whatever life throws at you.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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