There we were sitting in Wills and Trusts and the prof used the phrase, “the power of the codicil.” I was struck. Why? No idea.
Photo by Les Anderson on Unsplash
To this day, I still love the phrase and still have no idea why. Similar to a child’s love of the phraseology of “supercalifragilisticexpialidocious.” Thus, in honor of the almighty Codicil and National Estate Planning Awareness Week, I thought it a good idea to unpack “the power of the codicil.”
A Codicil (“kah-duh-sill”) is the mechanism used to change a Last Will and Testament.
Consider the following scenario:
A very long time ago, Molly, an independent and progressive young woman for her time, had a Last Will and Testament prepared. She was married and owned a couple of properties. Her Will left everything to her spouse and since she and her spouse had no children, Molly named her best friend, Florence,as a contingent beneficiary (or more precisely, legatee).
Unfortunately, Molly and her spouse divorced and to celebrate her divorce, Molly decided to take a cruise from New York to England. Her best friend became ill and so had to stay home. During the oceanic voyage, the ship sank but Molly survived and Molly vowed to change her Will as soon as she returned home.
[SIDEBAR – Had Molly died, the law would have prevented her ex-spouse from inheriting but instead of her best friend inheriting her fortune, it would have gone to her no-good nephew, Fred.]
Molly’s Will was very precise and long for the day – more than 10 pages. Still, all she wanted to change were the legatees; she didn’t need a completely new Will. So… enter the Codicil. Molly’s attorney prepared 2 pages, explaining and stipulating the changes – Florence received everything and if Florence predeceased Molly, then her fortune went to the Jane Addams Hull House. Molly and 2 witnesses signed and dated the codicil and voila! All was right with the world. Her will was validly changed.
Molly remarried decades ago but is now a contented widow in her twilight years with great-grandchildren. About 20 years ago one particularly geeky grandchild convinced Molly to invest in “some contraption called “the Google”,” this other stock called “Apple,” and “a silly online store called “Amazon” of all things.” Molly’s fortune exploded so she thought it would be a good time to change her estate plan. She intends to ensure her descendants are well-cared for and give to social justice and environmental causes. Her former lawyer has since retired, so she met with her grandchild’s lawyer and mentioned the power of the Codicil. The lawyer smiled and advised that, given her good fortune and fruitful life, an entirely new Will in addition to other planning mechanisms are in order. Molly understood and the asked if the lawyer accepted Bitcoin as payment.
One may ask can a Codicil be considered a Will? For example, what if the Will was lost but the Codicil was located and, for some reason, restated everything in the Will. Because the Codicil must be prepared and signed with the same formalities as a valid Will, this Codicil would likely be considered just that – a valid Last Will and Testament.
Another interesting question that occasionally pops up is what if a Testator just scratched out or added someone’s name to the margin of the Will – what effect would those actions have on the Will? Would that deletion or addition be valid? No. Those actions are not valid unless done so contemporaneously during the signing of the Will. If done so afterward, without the formalities, the person who was scratched out will still inherit and the person added won’t inherit a thing.
After a Will has been signed, in Illinois, for those changes to be valid, one would have to execute a supercalifragilisticCodicil.
