KIRIT. P.

MEHTA SCHOOL OF LAW, MUMBAI

FAMILY LAW II
Semester V (2019-2020)

A RESEARCH PAPER SUBMITTED ON

CODICILS

Submitted By:
Aditya Tanwar – A047
TY BBA LLB (Hons.)

Submitted To:
Prof. Twinkle Maheshwary

Date: 14th September' 2019

 INTRODUCTION.

A codicil is an addendum of any kind to a will. Codicils can alter, change, add to or subtract
from the provisions in the will. They can be used to keep a will and testament current and up
to date. A codicil is an instrument made in relation to a Will, explaining, altering or adding to
its dispositions and is deemed to be a part of the Will. A codicil has to be executed and
attested like a Will. A codicil is similar to a Will and is governed by the same rules as a Will.

A will, also called a "last will and testament," is the statement of one's final wishes. The
person who makes the will, known as the testator, usually names others to administer the
estate and to distribute property to beneficiaries. In general, the purpose of a will is to:

 Augment a trust
 Address liabilities (payments of taxes, other debts)
 Name an executor (a person who takes care over testator's estate)
 Provide guardians for children.

After the testator's death, the executor may offer the will into probate court for the probate process.
An executor will address any creditors’ claims, pay appropriate estate taxes and debts, and ensure
beneficiaries get property disbursements as will requires.

Research Questions:

 What is the Legal Background and Regulations to a Codicil?

 Distinguish between a will and a codicil & Codicil’s working in the eyes of law?
 What are the Merits & Demerits to a Codicil?
 To understand the relation and the linkage between a Will and a Codicil, better.

Research Methodology

The research conducted is of secondary nature. All the aspects of the topic have not been covered in
complete depth as the subject was very vast. Attempts have been made to ensure that this contains no
biased views.

As the study was critical in nature, doctrinal methods have been adopted for the purpose of research
because it was not possible to study the subject by experimental method.
 Codicil and Will - Difference Between a Codicil and a Will

A codicil is simply an amendment to an existing will. A codicil may involve only changes or
deletions to a will, or it may involve major alterations. The original will and the subsequent
codicil(s) are interconnected.

A codicil must conform to the same requirements that the original will had conformed to. For
example, in most jurisdictions, a valid will must be signed by the testator in front of two
witnesses. Therefore, a codicil would likewise have to be signed in the presence of two
witnesses.

Codicils May Create Legal Ambiguities

Throughout the course of a lifetime, an individual may amend his or her wishes concerning
estate planning and property disbursements. As a result, many codicils may be produced. This
can lead to legal complications upon the death of the testator.

When many testamentary writings are involved, a probate court may need to determine
whether a codicil is actually an amendment to an existing will or a completely new will.

Probate and Letters of Administration

Probate: A probate means a copy of the Will, certified under the seal of a competent Court
with a grant of administration of the estate to the executor of the testator. It is the official
evidence of an executor's authority. A probate is mandatory when the Will is executed by a
Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to
immovable property situated in Mumbai, Calcutta or Chennai.

Effect of Grant of Probates

A probate granted by a competent court is conclusive evidence of the validity of a Will until
it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke
the probate. However, it only establishes the legal character of the executor and in no way
decides the title or even the existence of the property devised. The grant of the probate
decides only the genuineness of the Will and the executors right to represent the estate.
The grant of a probate is conclusive evidence of the testamentary capacity of the person who
made the Will.

A probate is conclusive as to the genuineness of the Will and appointment of the executors.
Once a probate is granted, no suit will lie for a declaration that the testator was of unsound
mind. Probate is conclusive as to the representative title of the executor

General Terms Used in A Codicil

1. Amendment: this is an official change that has been made to a document.

2. Beneficiary: this is the individual whose name appears in the will as the intended
recipient of the assets.
3. Jurisdiction: the legal region or authority to hear a case or enforce justice.
4. Probate: this is the authentic copy of the will that has been validated by the court.
5. Probate court: this is the part of the judiciary that oversees all matters that are
related to wills, estates, guardianship, trusts and much more.
6. Testator: this is the owner of the will or the creator of the document
 Legal Background & Regulations – A Codicil

Codicils must be executed in the same manner as a will. These requirements vary by state.
All states require that the codicil be signed by the testator, and that there be witnesses, who
generally must watch the testator and each other sign. Most states require two witnesses, but
a few require three. There are also rules about who may, or may not, serve as a witness
(typically someone under the age of majority, or who might inherit from the testator either
under the will or under the probate law).
Not all states require that a will or a codicil be notarized, but notarization is a good idea.
Having the signatures of the testator and the witnesses notarized may allow the codicil to be
admitted to probate without having to track down the witnesses. There may also be certain
statements that are required to be in the codicil above the signatures of the testator, the
witnesses, and the notary.

Although not a legal formality, be sure to carefully proofread your codicil before signing it. If
possible, ask someone else to proofread it too. 

Execution of A Codicil

codicil goes through the scrutiny regarding its execution. For instance, it must conform to the
same legal requirements as the original will e.g. the codicil must have the signatures of the
testator and, typically, two or three disinterested witnesses. Also, a codicil should be executed
and attested like a Will as in all sense it is similar to a Will and is governed by the same rules
as a Will.

Thus, though an Indian will is a static document, it can be changed through codicil over time
as the circumstances in your life and your family change. Codicil basically states what items
of your will you are changing. Interestingly, codicil should be kept together with Will. In
situation you are making substantial changes to your will, codicil could be bad idea as it’s
better to go for a new Will. Also, as you can revoke your codicil there is no issue that you
have made a codicil that is not suiting to the current situation and requirement. You just need
to follow the process that you follow when writing down your Will. If you revoke your
codicil, like will, it is assumed that you never had drafted a codicil at all.

Just like will, every codicil must undergo processes of verification before it is executed which
include:

1. It must have the same legal requirements as the original will which include the
signature of the testator and the impartial witnesses.
2. It must be administered in same standard as a will.

Codicil states the aspect of your life that has been altered and must be stored in the same
place as a will.

Revocation of A Codicil

Yes. you can revoke your codicil by following the same procedures you used in its drafting.
A codicil that has been revoked will assume the status that it was never written. A codicil can
be revoked when you discover that the changes you made is no longer fitting with the reality.
However, it is better you go for a new will if you are making major changes in the document.
 STEPS - A CODICIL

In writing your codicil, your name, address and date of enactment of your previous will must
be clearly stated and then proceed to list your changes in the affected clauses. However
hereunder are the steps that are necessary if you want to prepare a codicil.

1. Read your original will and note the parts you intend to amend and consequently
ensure that the copy of the will in your possession is the latest and original one.
2. Provide your codicil with a suitable title.
3. 3. Write the first paragraph by stating clearly your name, residence, and state of
mind. Stating clearly that this amendment shall override any previously existing
part of the will as amended.
4. 4. Identify the clause that you intend to amend, remove or add.
5. Write to acknowledge that your codicil will overrule any previous portion of your
will.
6. Reaffirm your will by writing “I hereby affirm and republish all aspects of my will
dated [insert the date]”

It is only the creator of the last will who is also referred to as the testator that can alter the content of
the last testament. This implies that without the testator, no other person can make changes to the
existing will.

WHAT IF YOU HAVE DRAFTED MULTIPLE CODICILS?

If you have drafted more than three codicils in the past and you are now planning to draft
another, why not consolidate the changes and make a new will? This will make the work of
the executioner easier because the documents will be in one piece instead of separate parts. In
addition to this, the court will be more apt to approve a single document as your final wish
than numerous pieces of paperwork that might introduce some ambiguity to your intentions.
If your will appears to be confusing, the judge may declare it invalid or may decide to uphold
some of your codicils and jettison the others. If your will is rejected by the court, it is the
same thing as having lived and died without a will to your honour. Your properties will be
inherited by your next of kin based on the local laws even if it was not your original
intention.

REASONS OF ALTERETION IN A WILL BY A CODICIL

Below are some of the reasons you may want to rewrite your will or enact a codicil to your
existing document:

1. Beneficiaries are to be changed or others will be added

2. Separation or divorce
3. Either the executor of the will is dead or is no longer needed.
4. Marriage or authorized civil partnership
5. Property or money inherited from another
6. Change of funeral or burial arrangements
7. Certain tax changes that must be taken care of in the will to protect the
beneficiaries.
8. Alterations to the needs of the family especially where the guardian of a minor is
to be replaced.
9. Changes in your financial life – for instance changes in assets and liabilities

ADVANTAGES OF A CODICIL

1. Drafting a codicil is cheaper than rewriting the will completely.

2. You do not have to register a codicil as a new will.
3. There is no limit as to how many codicils you can add to your will.

DISADVANTAGES OF A CODICIL

1. When administering an estate and a copy of the codicil has gone missing, such part
will not be taken into consideration.
 2. Where the number of codicils was much and one is yet to be found, it will be
difficult knowing the main will of the principal.
3. In situations where the codicil fails to acknowledge issues like inheritance tax, the
old will may not be considered appropriate.
4. The more the codicils you have, the more complicated issues might be upon your
death

CONCLUSION

This paper highlights the importance and loops to a codicil when being used in family
succession situation at cases of wills being renewed, this helps one understand the procedure
and the value of this in the eyes of law.

Codicil, the advantages and it’s disadvantages also states that usage of codicil in cases be
complicated, can create problems and showcases the legal path but also tells the ambiguous
nature of the same. And, if precisely done will clear the vision to any succession situation.
Makes one understand it’s actual validity in family matters when a trivial and be a huge chaos
in any situation of family matter all are considered to a codicil if want to make one, or to alter
in a will basically being reasons to do so.

Lastly, clears the head by interpreting this as a second hand to support in family law
specifically. This is about this paper as conclusion.

BIBLIOGRAPHY

 India, l. (2019). Wills and Codicils - Register Your Will - Valid WILL. Retrieved 14 September 2019,
from http://www.legalserviceindia.com/wills.htm

 CREATING A CODICIL VS. WRITING A NEW WILL

Creating a Codicil vs. Writing a New Will. (2019). Retrieved 14 September 2019, from
https://www.legalmatch.com/law-library/article/creating-a-codicil-vs-writing-a-new-will.html

 What is Codicil? How is it executed?. (2019). Retrieved 14 September 2019, from

https://www.kaanoon.com/indian-law/what-is-codicil-how-is-it-executed/

 "Codicil", 2019)
 Codicil. (2019). Retrieved 14 September 2019, from https://www.investopedia.com/terms/c/codicil.asp

 ("How to Write a Codicil to a Will", 2019)

Retrieved 14 September 2019, from
https://www.legalzoom.com/articles/how-to-write-a-codicil-to-a-will