Understanding Codicils: A Simple Guide to Amending Your Will
Learn what a codicil is, when to use one, and how it can help you update your will without creating an entirely new document. Essential information for singles, parents, and high net worth individuals.
Introduction
A codicil is a legal document that allows you to make minor changes or additions to your existing will without having to rewrite the entire document. Think of it as an amendment or supplement to your will. Codicils must be executed with the same formalities as a will (signed, dated, and witnessed) to be legally valid. Whether you're single without children, married with a family, or have substantial assets, understanding how and when to use a codicil can save you time and money while ensuring your final wishes are properly documented and legally binding.
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Key Things to Know
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A codicil must be executed with the same legal formalities as a will—signed, dated, and properly witnessed according to your state's laws—to be valid.
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Store your codicil with your original will to ensure they're found together when needed. Consider informing your executor about the existence of both documents.
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Multiple codicils can create confusion and increase the risk of contradictions or legal challenges. If you've already made several codicils, creating a new will may be clearer.
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Life events such as marriage, divorce, birth of children, or significant changes in assets should trigger a review of your will and consideration of whether a codicil is appropriate.
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For high net worth individuals, even small changes via codicil can have significant tax implications. Always consult with a tax professional or estate attorney before making changes.
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Digital assets (cryptocurrency, online accounts, digital files) are increasingly important to include in estate planning. Consider using a codicil to address these if they weren't in your original will.
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Self-created codicils using online templates carry higher risks of invalidity. The modest cost of professional legal assistance is usually worth the peace of mind, especially for valuable estates.
Key decisions before you file
Before you file a Codicil in Tennessee, a few decisions shape the document: which option to choose and what each one means. The Codicil guide walks through them.
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Tennessee Requirements for Codicil
Testamentary Capacity (T.C.A. § 32-1-102)
The testator must be of sound mind and memory, at least 18 years of age, and understand the nature of their property, the natural objects of their bounty, and the disposition they are making.
Writing Requirement (T.C.A. § 32-1-104)
A codicil must be in writing to be valid in Tennessee, as it is subject to the same formalities as a will.
Signature Requirement (T.C.A. § 32-1-104)
The codicil must be signed by the testator or by someone else in the testator's presence and at the testator's direction.
Witness Requirements (T.C.A. § 32-1-104)
The codicil must be witnessed by at least two competent witnesses who sign in the presence of the testator and in the presence of each other.
Interested Witness (T.C.A. § 32-1-106)
A witness who is also a beneficiary under the codicil may still serve as a witness, but this may affect their ability to receive benefits under the will or codicil.
Self-Proved Codicil (T.C.A. § 32-2-110)
A codicil may be made self-proved at the time of execution or at a later date by acknowledgment by the testator and affidavits of witnesses, all made before a notary public.
Revocation of Codicil (T.C.A. § 32-1-201)
A codicil may be revoked by a subsequent will or codicil that expressly revokes it, or by physical act (burning, tearing, etc.) with the intent to revoke.
Incorporation by Reference (T.C.A. § 32-3-104)
A codicil may incorporate by reference any document in existence when the codicil is executed if the codicil manifests this intent and sufficiently describes the document.
Republication by Codicil (T.C.A. § 32-3-102)
The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.
Holographic Codicil (T.C.A. § 32-1-105)
A codicil written entirely in the testator's handwriting and signed by the testator is valid without witness signatures, though not recommended.
Nuncupative (Oral) Wills/Codicils (T.C.A. § 32-1-106)
Tennessee recognizes oral wills/codicils made during last illness for personal property under certain limited circumstances, but they are subject to strict requirements.
Choice of Law (T.C.A. § 32-1-107)
A written will/codicil is valid if executed in compliance with Tennessee law or the law of the place where executed or where the testator was domiciled at execution or death.
Undue Influence (Common Law as applied in Tennessee courts)
A codicil is invalid if it was procured by undue influence, which occurs when someone exerts pressure that overcomes the testator's free will.
Fraud (Common Law as applied in Tennessee courts)
A codicil procured by fraud, such as misrepresentations made to the testator that caused them to make certain provisions, is invalid.
Mistake (T.C.A. § 32-3-131)
Courts may reform a codicil to correct mistakes if clear and convincing evidence establishes that the testator's intent and the terms of the document were affected by a mistake of fact or law.
Simultaneous Death (T.C.A. § 31-3-120)
If the order of deaths cannot be determined, the Uniform Simultaneous Death Act applies, which may affect provisions in a codicil.
Slayer Statute (T.C.A. § 31-1-106)
A beneficiary who intentionally kills the testator is treated as having predeceased the testator and cannot benefit from the will or codicil.
Tax Apportionment (T.C.A. § 30-2-614)
Unless the codicil provides otherwise, estate taxes are apportioned among beneficiaries in proportion to the value of their interests.
Rule Against Perpetuities (T.C.A. § 66-1-202)
Tennessee has modified the common law rule against perpetuities, allowing interests to vest within 360 years of creation.
Federal Estate Tax Compliance (26 U.S.C. § 2001 et seq.)
Codicils affecting substantial estates must consider federal estate tax implications, including exemption amounts and marital deductions.