A will should change when life does. After a marriage, a divorce, the birth of a child, the death of a beneficiary or a significant change in assets, an existing will may no longer say what you want. In New York, the instrument for modifying a will without rewriting it is a codicil. A codicil looks simple, but a badly executed one can invalidate the changes or, worse, put the underlying will in doubt. We draft and supervise the execution of codicils so that they hold up in Surrogate’s Court if challenged, and we tell clients when a new will is the better answer.
What Is a Codicil Under New York Law?
A codicil is a formal document that supplements, modifies, revokes or explains a provision of an existing will. Instead of drafting a new will from scratch, the testator makes targeted changes and leaves the rest of the original will intact.
Under EPTL § 3-2.1, a codicil must be executed with the same formalities as a will. It must be in writing and signed at the end by the testator, or by another person in the testator’s presence and at the testator’s direction. The testator must sign, or acknowledge the signature, in the presence of at least two attesting witnesses, and must declare to them that the document is a codicil to the will. The two witnesses must sign within a 30-day period. If any of these formalities is missed, the codicil is invalid and the original will provisions remain in force, often contrary to what the testator actually wanted at death.
When a Codicil Makes Sense
Not every change requires a new estate plan. A codicil suits changes that are limited in scope.
| What changed | What the codicil does |
|---|---|
| Marriage or divorce | Under EPTL § 5-1.4, divorce automatically revokes provisions in favor of a former spouse; a codicil clarifies your intentions regarding new beneficiaries. |
| Birth or adoption of a child or grandchild | Adds the new beneficiary so they are provided for. |
| Death of a beneficiary or executor | Names a substitute beneficiary or fiduciary. |
| Estrangement or reconciliation | Adjusts bequests to reflect current relationships. |
| Financial change: property bought or sold, an inheritance or windfall, a change in business ownership | Adjusts specific bequests, including specific monetary bequests, to match what you now own. |
| Fiduciary appointments | Names a new executor or successor executor, a different guardian for minor children, or a different trustee. |
| Charitable giving | Adds or removes a charity as beneficiary, or changes the amount of a charitable bequest. |
Codicil or New Will?
The first question we address is whether a codicil is appropriate at all. Codicils were more common when wills were handwritten or typed on typewriters; with word processing, a new will is nearly as quick to prepare, so the choice turns on the scope of the change and the state of the existing document.
| Your situation | Usually the better choice |
|---|---|
| One or two minor changes to an otherwise sound plan | Codicil |
| You want to preserve the original date of the will for evidentiary purposes | Codicil |
| The cost and complexity of a full revision are not justified by the change | Codicil |
| Multiple substantive changes | New will |
| The existing will is several years old and may not reflect current New York law | New will |
| You have already executed one or more codicils, and further amendments could create ambiguity or invite a contest | New will |
| You want a single, clear document for your executor and beneficiaries | New will |
The Risks of a Do-It-Yourself Codicil
Template codicils are everywhere online, and we have seen Surrogate’s Court contests grow out of them. The recurring problems are improper execution that fails the witnessing requirements of EPTL § 3-2.1; ambiguous language, with vague references to property or beneficiaries that conflict with the original will; inadvertent revocation, where wording unintentionally revokes other provisions of the will; no record that the testator understood the nature of the changes, which invites a lack-of-capacity objection; and suspicious circumstances around the signing that invite an undue influence claim from a disinherited heir. A lawyer drafting the codicil supervises the execution, keeps supporting documentation and, when appropriate, uses a self-proving affidavit under SCPA 1406 to simplify the eventual probate.
How a Codicil Is Prepared and Signed
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Initial consultation
We review the existing will, discuss the changes you want, and decide together whether a codicil or a new will is the right vehicle. We also look at related documents: powers of attorney, health care proxies and trusts.
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Drafting
The codicil identifies the original will by its date of execution, specifies exactly which provisions are modified or revoked, sets out the new provisions, and confirms that the remainder of the will continues in full force.
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Review and revision
You review the draft, ask questions and request any changes before signing.
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Execution
The codicil is signed in the presence of two competent witnesses in accordance with EPTL § 3-2.1. We typically add a self-proving affidavit, sworn before a notary, which can eliminate the need for the witnesses to testify in Surrogate’s Court at probate.
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Safekeeping
The codicil should be stored with the original will, whether in a safe deposit box, a fireproof safe or an attorney’s safekeeping arrangement, and your named executor should have a copy.
Codicils at Probate
When a will is admitted to probate, every valid codicil must be filed and admitted alongside it. The court reads the will and codicil together as a single testamentary instrument, with the codicil controlling wherever the two conflict. If there are several codicils, all of them must be located and submitted. That is one reason too many codicils complicate probate: a missing or contradictory codicil can lead to litigation among the beneficiaries.
A codicil can be revoked in the same ways as a will: by executing a later will or codicil that revokes it, or by a physical act such as burning, tearing or destroying the document with the intent to revoke. Because revocation by physical act is a fact-intensive question, we recommend a formal written revocation in a properly executed new instrument rather than reliance on destruction.
Frequently Asked Questions
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How much does a codicil cost?
It depends on the complexity of the changes. Many simple codicils can be prepared on a flat-fee basis, and we discuss fees at the initial consultation.
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Do I need to tell my beneficiaries that I have executed a codicil?
No. A codicil, like a will, is private during your lifetime. You have no legal obligation to disclose its contents or its existence to anyone, although your executor should know where it is.
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Can a handwritten codicil be valid in New York?
New York generally does not recognize holographic (handwritten, unwitnessed) wills or codicils, except in the narrow circumstances involving members of the armed forces and mariners at sea under EPTL § 3-2.2. For virtually everyone, a codicil must be typed and executed with the statutory formalities.
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How many codicils can I have?
There is no legal limit. After one or two, however, we usually recommend consolidating everything into a new will for clarity.
Talk to Us
If your will no longer says what you want, call 212-233-1233 or email [email protected]. We will look at the existing will, tell you whether a codicil or a new will is the right answer, and make sure whatever you sign will stand up.
