Codicil to a Will in Australia: When to Use One and How to Sign It Properly

A codicil is a short, separate document that changes part of your existing will without rewriting the whole thing. It suits a small change, such as a new executor, one gift added or changed, or a name update. To be valid, it must be signed and witnessed the same way a will must be: you sign in front of two witnesses who are there at the same time, and they sign in front of you.

Claim Done drafts a codicil to a will from your answers for a flat A$49. It names your existing will by its date, sets out the change, confirms the rest of the will stays the same, and includes the signing block for you and two witnesses, with plain instructions on how to sign it.

What a codicil is, and what it is not

The Supreme Court of NSW describes a codicil as a document that amends, rather than replaces, a will you have already signed. It can vary or replace the executors named in your will, and after you die the will and codicil are read together.

A codicil is not a note in the margin. The State Library of NSW legal guide says crossing out or writing onto a signed will has no effect, and the Public Trustee of Queensland says not to write changes on your original will because they can cause problems when you pass away.

Codicil or new will: which one suits your change

A codicil works best when the change is small and clear. Typical examples:

• appointing a new executor because the person you named can no longer act
• adding one gift, or changing who receives one gift
• recording that someone named in your will has changed their name
• cancelling one gift or clause

Official guides are clear that a new will is often the better choice. Victoria Legal Aid says codicils are only for minor changes and that the best way to change a will is to make a new one. It also warns that a codicil must not cause confusion or contradict the original will, and a confusing codicil may be held invalid. The South Australian Law Handbook adds that a new will removes the risk of a codicil becoming separated from the will.

Think about a new will instead if:

• you want to change who gets most of your estate
• you want several changes at once, or you already have one or more codicils
• you have married, divorced or separated since the will was made (in Victoria, marrying cancels a will unless the will shows it was made with that marriage in mind)
• you cannot find your original signed will

Signing and witnessing: the same rules as a will

A codicil has to meet the same formal requirements as a will. The NSW Supreme Court puts it simply: to be valid, a will or codicil must be in writing and signed by the will-maker and by two witnesses. A codicil that is signed but not properly witnessed does not meet those requirements.

The safe way to sign, which meets the rules in each State listed below:

1. Get two adult witnesses together with you, in the same room, at the same time.
2. Sign and date the codicil while both witnesses watch.
3. Each witness then signs while you watch, and prints their name and address under their signature.
4. The State Library of NSW guide on valid wills suggests everyone sign one after the other, in each other’s presence, using the same pen.

The witnesses do not have to be the same people who witnessed your original will, according to the South Australian Law Handbook, but the codicil must have a properly signed attestation clause and should refer to your original will and its date.

What the official sources say, by State

If you live in Western Australia, Tasmania, the ACT or the Northern Territory, check with your State or Territory Public Trustee or Legal Aid before you sign.

Who should not witness your codicil

The simplest rule that works in every State above: use two independent adults who get nothing under your will or the codicil, and who are not the husband, wife or partner of anyone who does. In NSW and Queensland a beneficiary who witnesses can lose their gift. In Victoria and South Australia the law is different, but the South Australian Law Handbook still suggests outside witnesses to avoid any suggestion of a conflict of interest. A person who cannot see you sign cannot be a witness in NSW.

Victoria also allows witnessing by audio visual link, but only under set conditions, including that one witness is a lawyer or justice of the peace. If you want to use that, follow the steps on the Victoria Legal Aid valid will page carefully.

The structure of a codicil

A codicil is short. Here is how one is laid out:

1. Heading. “Codicil to a will” and your full name and where you live.
2. Which will it changes. One sentence naming your existing will by the date it was signed.
3. The changes. Each change as its own numbered clause, in plain words.
4. Confirmation. A clause saying that in all other respects you confirm your will of that date.
5. Attestation clause and signatures. A statement that you signed in the presence of both witnesses, all present at the same time, then your signature and date, then a block for each witness with signature, full name and address.

One thing a codicil must not contain is a clause cancelling all your earlier wills. The State Library of NSW guide warns that such a clause may cancel the very will the codicil was meant to update.

After signing: keep it with your will

Store the signed codicil with your original will, in the same safe place. Do not write anything on either document after signing. It is also wise to tell your executor where the originals are kept.

After a death in NSW, the Supreme Court says the original will and any codicils must be filed with the court application, and the court keeps them. A lost codicil cannot be read with the will.

Mistakes to avoid

• Writing the change onto the signed will instead of making a codicil.
• Signing the codicil without two witnesses present at the same time.
• Asking a beneficiary, or a beneficiary’s partner, to witness.
• Wording that clashes with the will, which can make the codicil confusing or invalid.
• Keeping the codicil somewhere different from the will.

When to get advice first

Victoria Legal Aid says a valid will needs testamentary capacity. Capacity means you know what a will is and its effect, roughly what you have to leave, and what reasonable claims could be made on your property. If there is any doubt about capacity, for example because of illness or memory problems, get legal advice before signing. Victoria Legal Aid notes that a doctor can assess capacity and sign an affidavit about it.

Also get advice if someone may challenge your will, or the change involves a business, a trust or property overseas.

If your change is small and you are ready to sign it properly with two witnesses, you can have your codicil drafted for A$49 and download it straight away.