Alterations and amendments to wills - Use and effect of codicils

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Overview

In estate planning, codicils allow testators to update their wills without rewriting the entire document. For SQE1 FLK2 exam candidates, knowing how codicils function is vital. This article examines the legal structure, practical uses, and broader outcomes of codicils, providing future legal professionals with the skills to handle challenging scenarios in exams and their careers.

Legal Framework and Requirements of Codicils

Definition and Legal Basis

A codicil, from the Latin "codicillus," adds to or updates a will. Governed by the Wills Act 1837 and its amendments, a codicil changes testamentary instructions without creating a new will.

Formal Requirements

To be valid, a codicil must meet the same standards as a will, as stated in Section 9 of the Wills Act 1837:

  1. Written format.
  2. Signed by the testator or another in their presence.
  3. Signature acknowledged with two witnesses present.
  4. Witnesses must sign or confirm their signature in the testator's presence.

These strict rules highlight the importance of protecting against fraud or undue influence.

Challenges in Attestation

The attestation process for codicils requires attention:

  1. Witness Eligibility: Witnesses cannot be beneficiaries or related, to prevent nullifying gifts.
  2. Simultaneous Presence: Witnesses must be present together during the testator’s signature, critical for validity.
  3. Signature Placement: Errors in signature location, as in Payne v Trap, can invalidate a codicil.

Applications and Effects of Codicils

Types of Modifications

Codicils can modify:

  1. Specific bequests or legacies.
  2. Executor appointments.
  3. Testamentary trusts.
  4. Beneficiaries.
  5. Clarify original will provisions.

Republication Doctrine

Executing a codicil republishes the will as of the codicil's date, affecting interpretation:

  1. Reviving Invalid Provisions: Can bring back previously void parts.
  2. Incorporation by Reference: Allows including documents existing at the codicil's execution.
  3. Changing Asset Status: Affects assets acquired post-will execution.

Interaction with Original Will

Codicil and will relationships need careful scrutiny:

  1. Later codicils typically override earlier versions.
  2. Can partially revoke a will.
  3. Requires joint interpretation for true intent, as seen in Re Vickers.

Legal and Interpretative Challenges

Ambiguity Interpretation

Codicils can introduce ambiguity, requiring judicial analysis:

  1. Patent vs. Latent Ambiguity: Courts handle these based on apparent or hidden complexities.
  2. Full Context Consideration: As highlighted in Marley v Rawlings, context is key.

Validity Issues

Codicils face challenges such as:

  1. Testamentary Capacity: Must meet mental capacity standards.
  2. Undue Influence: Coercive actions can void a codicil.
  3. Fraudulent Calumny: Misinformation affecting decisions can also invalidate it.

Example: Complex Codicil Scenario

Consider this situation:

Testator T made a will in 2010, splitting her estate between her children A and B. In 2015, she added a £100,000 legacy to her grandchild C. A 2020 codicil attempted to redirect B's share to charity, but was witnessed by B's spouse.

Analysis:

  1. The 2015 codicil likely validly includes C.
  2. The 2020 codicil has issues:
    • Witnessing by B's spouse may void B’s gift.
    • However, the attempt to revoke may not affect codicil validity.
    • Republication in 2020 could reset the will's effective date.

This scenario demonstrates the complexities of multiple codicils and their requirements.

Tax Considerations

Using codicils may impact inheritance tax (IHT):

  1. Execution Date: Affects IHT if executed within seven years of death.
  2. Charitable Gifts: Altering charitable bequests can influence IHT liability.
  3. Business and Agricultural Reliefs: Codicils can change asset disposition, affecting tax reliefs.

Conclusion

Codicils represent a flexible solution within estate planning, enabling efficient amendments without altering the basic structure of a will. As SQE1 FLK2 students examine these concepts, recognizing the legal subtleties and practical applications of codicils will bolster their comprehensive understanding of estate law.