A codicil is a document that amends an existing will without replacing it. If you are administering an estate and find one, it forms part of the will and has to be dealt with accordingly. This guide explains when a codicil is valid, what it does to the will, and the points that most often cause problems at the Probate Registry. It applies to England and Wales.
What a codicil is, and what it is for
A codicil modifies, adds to or partly revokes an earlier will. It is governed by the Wills Act 1837 in exactly the same way as a will, and must be executed with the same formality.
It suits small, self-contained changes: swapping an executor, updating a beneficiary’s name, adding or altering a specific gift. For anything larger, a fresh will is usually better. Multiple codicils to the same will are a common source of confusion, and the cost saving over a new will is rarely as large as people assume.
At probate, the will and every codicil are read together as one testamentary statement. Where they conflict, the later document prevails, so long as it was validly executed.
What makes a codicil valid
A codicil must satisfy section 9 of the Wills Act 1837, the same provision that governs wills.
- It must be in writing. Typed or handwritten is fine; audio and video are not.
- It must be signed by the testator, or by someone else in their presence and at their direction, with the intention of giving effect to it.
- The signature must be made or acknowledged in the presence of two or more witnesses present at the same time. The testator can sign in advance and then acknowledge the signature to both witnesses together.
- Each witness must then sign in the presence of the testator, though not necessarily in the presence of each other.
- It should be dated, and should identify the will it amends by date.
The testator must also have testamentary capacity, understand the effect of the change, and be acting freely.
One point on timing. During the pandemic, witnessing by video link was temporarily permitted for wills and codicils made from 31 January 2020 up to and including 31 January 2024. For anything made on or after 1 February 2024, both witnesses must be physically present.
The witness rule that is widely misreported
This matters more than anything else in this article, because getting it wrong leads people to treat a perfectly good document as worthless.
If a beneficiary, or their spouse or civil partner, witnesses a will or codicil, section 15 of the Wills Act 1837 makes the gift to that person void. It does not invalidate the codicil. The rest of the document stands, and section 15 expressly confirms that the witness can still give evidence to prove the execution.
So a codicil witnessed by a beneficiary is still a valid codicil. What is lost is that beneficiary’s gift.
Three refinements worth knowing:
- An executor may witness a codicil. There is no bar at all, provided they take no benefit under it. The rule catches beneficiaries, not office-holders. Plenty of published guidance wrongly lists executors alongside beneficiaries.
- A spare witness saves the gift. Under section 1 of the Wills Act 1968, the beneficiary’s attestation is disregarded if the document was properly executed without it. So if there were three witnesses and two were unconnected, the gift survives.
- Cohabitants are not currently caught. The rule covers a spouse or civil partner, not an unmarried partner. The Law Commission has recommended extending it, but that is not the law today.
There is also a repair route. Because a codicil that confirms a will republishes it as at the codicil’s date, a later codicil can save a gift that failed under section 15 when the original will was witnessed, provided the beneficiary does not also witness the codicil. The case usually cited is Re Trotter [1899] 1 Ch 764. That is a fix, not a plan: re-executing the will or making a new one is the sensible course.
What a codicil does to the will
Republication
A codicil that confirms the will has the effect, under section 34 of the Act, of treating the will as though it had been made on the date of the codicil. The will “speaks” from the later date for the purposes of construction, so references such as “my present home” or “my current solicitors” are read as at that date rather than the original one.
That is useful, but it can also produce results nobody intended, which is a further reason to prefer a new will where the changes are substantial.
Reviving a revoked will
Under section 22, a will that has been revoked can be brought back to life by a codicil, but only where the codicil is properly executed and shows an intention to revive it. The intention has to appear from the codicil itself. If a will was partly revoked and later revoked entirely, reviving it does not restore the part revoked at the earlier stage unless a contrary intention is shown.
Validating an alteration already written on the will
People do write on their wills, and under section 21 an unexecuted alteration has no effect: the will is proved as it read before the change. The exception is where the original wording has been obliterated so thoroughly that it can no longer be read, in which case those words are treated as revoked.
A properly executed codicil is one way to authenticate an alteration that has already been made. The better answer is not to write on a will at all.
Marriage, civil partnership and divorce
Two rules that catch people out, and they work in opposite directions.
Marriage or civil partnership revokes a will, and because the Act defines “will” to include a codicil, it takes the codicils with it. The exception is where it appears from the will that it was made in expectation of marriage to that particular person and was not intended to be revoked by it. See does marriage revoke a will. The Law Commission has recommended abolishing this rule, but it remains the law.
Divorce does not revoke a will. Under section 18A, the former spouse is treated as having died on the date the marriage was dissolved or annulled, so gifts and appointments to them fail and the rest of the will stands. It bites on divorce or dissolution, not on separation. See does divorce invalidate a will.
Handling a codicil as executor
Never attach it to the will
This is the practical point that causes the most delay, and a lot of guidance gets it backwards.
HMCTS’s own probate application form says plainly: do not attach anything to, or remove anything from, the original will or codicils. The Registry inspects documents for staple holes, pin marks, tears and stains, because they suggest something may once have been attached and taken away. Unexplained marks are one of the common reasons applications are stopped, and you may be asked to provide a statement explaining the document’s condition.
So keep the will and codicil together but unattached, in the same envelope or file. Never staple or clip them, and never remove an existing staple. If a document has to be separated for any reason, such as photocopying, record who did it, when and why, because the form asks.
The link between the two documents should be on the face of the codicil, which is why a codicil should identify the will it amends by date.
The rest of the job
- Search thoroughly. Codicils are not always kept with the will. Check the deceased’s papers, and ask any solicitor who held the will. Our guide to requesting the original will from a solicitor covers tracing documents, including where a firm has closed.
- Read the documents in sequence to work out the final position, especially where there is more than one codicil.
- Submit the original will and every codicil with your application. Omitting one will delay or derail the grant. See how to apply for probate with a will.
- Keep the witnesses traceable where you can, in case the Registry asks for evidence of execution.
- Take advice before distributing if any provision is ambiguous. An executor who distributes on a wrong reading can be personally liable, as our guide to the duties of an executor explains.
If the codicil is missing
Where the original cannot be found but a copy or draft exists, rule 54 of the Non-Contentious Probate Rules 1987 allows an application to admit the copy, supported by an affidavit or, since November 2020, a witness statement verified by a statement of truth. Form PA13 is used to report a lost will or codicil.
There is a hurdle. Where the document was last known to be in the deceased’s own possession and cannot be found, the law presumes they destroyed it intending to revoke it, and you will need evidence to rebut that. The presumption does not apply in the same way where a solicitor or bank held the document and lost it.
Challenging a codicil
A codicil can be challenged on the same grounds as a will: lack of testamentary capacity, want of knowledge and approval, undue influence, or failure to meet the section 9 formalities.
Codicils attract suspicion more readily than wills, because they are often made late in life, sometimes without a solicitor, and frequently benefit whoever was closest at the time. Where a codicil made shortly before death materially changes who inherits, expect it to be scrutinised.
If a challenge succeeds, the codicil is set aside and the will stands as though it had never been made. Our guides to contesting a will and contentious probate set out the process, and you can find a contentious probate solicitor through The Probate Network.
When to take advice
It is worth getting a view from a solicitor where the wording is ambiguous, where several codicils appear to conflict, where a codicil substantially rewrites who inherits, where there are concerns about capacity or influence, or where a codicil is referred to but cannot be found. Our guide to solicitors’ probate costs sets out what that is likely to cost, and the probate checklist covers the wider process.
Frequently asked questions
What is a codicil to a will?
A document that amends an existing will without replacing it. It must be signed, dated and witnessed with the same formality as a will under section 9 of the Wills Act 1837, and it is read together with the will as a single testamentary statement. It suits minor changes such as replacing an executor or adjusting a gift; for larger changes a new will is usually better.
Does a beneficiary witnessing a codicil make it invalid?
No, and this is the most commonly misreported point. Under section 15 of the Wills Act 1837 the gift to that witness, or to their spouse or civil partner, is void, but the codicil itself remains valid and the rest of it takes effect. If the document was properly executed by two other witnesses as well, even the gift survives. An unmarried partner is not caught by the rule as it currently stands.
Can an executor witness a codicil?
Yes, provided they are not also a beneficiary. There is no rule against an executor acting as a witness, and guidance that lists executors alongside beneficiaries as prohibited witnesses is wrong. An executor who is also receiving a gift should not witness, because the gift would fail.
Should I staple the codicil to the will?
No. HMCTS instructs applicants not to attach anything to, or remove anything from, the original will or codicils. The Probate Registry looks for staple holes, pin marks, tears and stains as signs that something may have been attached and removed, and unexplained marks can stop an application. Keep the documents together but unattached, and never remove an existing staple.
What happens if a codicil conflicts with the will?
The later validly executed provision prevails, so the codicil overrides the will to the extent of the conflict. Everything the codicil does not touch continues to have effect. Where there are several codicils they must be read in sequence, and where the combined effect is genuinely unclear the executor should take advice rather than guess, because distributing on a wrong reading carries personal liability.
Does getting married cancel a codicil?
Yes. Marriage or forming a civil partnership revokes a will, and because the Wills Act defines “will” to include a codicil, the codicils go with it. The exception is a will made in expectation of marriage to that particular person which says it is not to be revoked. Divorce works differently: it does not revoke the will, but the former spouse is treated as having died on the date of the dissolution.
What if the codicil cannot be found?
A copy or reconstruction can be admitted to proof under rule 54 of the Non-Contentious Probate Rules 1987, supported by an affidavit or a witness statement, using form PA13. The difficulty is the presumption that a document last held by the deceased and now missing was destroyed by them with the intention of revoking it. That can be rebutted with evidence, and it does not apply in the same way where a solicitor was holding the document.
This article is for general guidance only and applies to England and Wales. It does not constitute legal advice. The law can change and every estate is different. For advice on your own circumstances, speak to a qualified solicitor. You can book a free legal consultation through The Probate Network.
