If you have ever had to use a typewriter, you know that a typist working on an important document must avoid even the slightest mistake, or risk having to start all over. Much like a typist who found herself making a mistake, Will writing faced the challenge of correcting errors before the age and recognition of Codicils.
An obvious question.
WHAT IS A CODICIL?
A codicil is a mini and supplementary Will by which a testator can amend, increase or revoke the constituents of a previous Will. It simply provides the ability to make minor changes to a Will without the need to draft a new one entirely.
While a codicil is accepted as a mini, supplementary Will, the High Court (Civil Procedure) Rules of States in Nigeria require a codicil to be executed and attested in accordance with the same laws and rules that govern the execution and attestation of a Will.
We can explain.
A testator cannot make more than one Will. They can, however, make more than one codicil each time they require an amendment to their Will. Bearing this in mind, professional counsel is required to determine when it is necessary to make a new Will, as opposed to amassing several codicils. Generally, when amendments or alterations to a Will have exceeded a particular threshold and thereby complicate the Will, it is advisable to draft a new Will to accommodate the amendments. This brings us to an important part of the conversation.
SPECIFIC FUNCTIONS PERFORMED BY A CODICIL
What are some of the usual reasons for which people make Codicils?
- To validly revoke a Will.
If ‘Revocation of a Will’ sounds like serious business, this is because it is. Contrary to what movies would have us believe, a passionate tearing of Will documents by Testators during heated arguments would not be sufficient for invalidating Wills. Need examples? We have some, of course. In the judicial matter of Cheese v. Lovejoy, the Testator drew a line across his Will and wrote the word “revoked”, then squeezed it and threw it in a waste bin. His maid picked it up and put it back on the table, where it remained until his death. After his death, the court held that there was no destruction of the Will. The court stated inter alia as follows:“All the destroying in the world without intention to revoke the Will does not amount to sufficient destruction of the Will.”Also, in the judicial matter of Perkes v. Perkes, the Testator tore the Will into four pieces with the intention of destroying it but was stopped by a bystander and the beneficiary who begged for a change of heart. The Testator then simply picked the pieces of the Will and fitted them together. Even in this rough state, the court held that there was no destruction of the Will and upheld the fitted pieces as valid.
Whether it be by burning or by tearing, if a copy of a Will is later found, the verdict will be that the Will was never destroyed.
For a Will to be revoked, the Testator must express their intention to revoke the Will and then set about doing so, via several legal means. A codicil is one of the legal documents in which a Testator may express the intention to revoke their Will.
- To affirm a Will. Sometimes, a Testator may live for several decades after making a Will and feel that there is no need for any changes to the Will despite having written it many years earlier. In order to guard against successful contests to such a Will upon the Testator’s demise, a codicil affirming the dispositions in the Will can be made.
- To amend or alter the contents of a Will. This is the most common reason for which codicils are made. A codicil may be used to amend a Will where the Testator has acquired new properties not contained in the substantive (existing) Will, or where the Testator intends to include a new or a substitute beneficiary in the Will, or for a number of equally as valid reasons relevant to the situation.
- To revive a revoked Will. It is not unusual to find a Testator who, after revoking a Will, changes their mind as a result of a show of remorse by the offending beneficiary. In such a situation, the Testator may make a fresh codicil to revive the substantive Will. However, Section 15 of the Wills Law of Lagos State and many other States in Nigeria provide that for such revival to be valid, the substantive Will must not have been destroyed.
Anyone who intends to alter, amend or revoke a Will needs to use the most appropriate tool for the job. A new Will or a Codicil? Only professional consultation can tell which is right for you.
NB: For more details on making a Will or Trust, visit UTL Trust Management Services Limited here.