Just last week, a client called me from his home in Brooklyn. We had drafted his will about four years ago—a solid plan that provided for his wife and divided his assets between their two children. Now, he had a new grandchild and wanted to add a modest educational bequest for her. “Russel,” he said, “I don’t want to redo the whole thing. Can’t I just write a little note, sign it, and attach it to the will?”
It’s a logical question. The impulse to make a quick, simple update is understandable, and the legal instrument for this amendment is called a codicil. But while the concept is simple, its execution is not. In my practice, I find that codicils—once a common tool—create more problems than they solve.
The Formalities of a Legal Amendment
A codicil is not a note or an addendum. It is a formal legal document that supplements, modifies, or partially revokes an existing will. A codicil must be executed with the exact same legal formalities as the original will—it is not a casual update.
Under New York’s Estates, Powers and Trusts Law (EPTL) § 3-2.1, a will must be in writing, signed at the end by the testator, and witnessed by at least two individuals who also sign their names. These requirements apply with equal force to a codicil. You cannot handwrite a change in the margin or attach a signed sticky note. Any such attempt is invalid. The Surrogate’s Court would disregard it, leaving your original will in place as written.
These strict formalities exist to prevent fraud and confirm the document reflects the testator’s final, deliberate intentions. A codicil that fails to meet this standard is legally worthless.
Why We Advise Against Codicils
Decades ago, before word processors, retyping a 20-page will to change one sentence was a significant undertaking. A one-page codicil made practical sense. That technology is now obsolete, but the legal risks of a codicil remain.
I advise my clients against using codicils for several reasons:
1. They create confusion. Your executor must present all testamentary documents to the court. A will plus a codicil means two documents must be found, interpreted, and probated together. If the codicil is misplaced, or if its language conflicts with a provision in the will, the ambiguity can invite a will contest. This forces your family into litigation and drains estate assets to pay legal fees.
2. They reveal more than you intend. When a will and codicil are probated, both become public records. The codicil highlights what you changed. If a codicil disinherits a child who was included in the original will, for example, it creates a clear record of that decision. This can fuel resentment and provide a focal point for a legal challenge based on undue influence or lack of capacity.
3. The risk of error is high. A codicil must explicitly reference the original will and reaffirm all unchanged provisions. Any drafting error can create unintended consequences throughout your estate plan. It is almost always cleaner, safer, and clearer to create a new will that stands on its own, expressly revoking all prior wills.
The cost savings of a codicil versus a new will are minimal. The potential cost to your estate—in legal fees, delays, and family strife—can be immense. Stewardship is about minimizing risk for the next generation. A codicil often introduces risk unnecessarily.
Are There Any Exceptions?
While I am skeptical of codicils, there are rare circumstances where one might be a prudent choice. These situations are the exception, not the rule, and require careful consideration with an attorney.
One scenario involves a testator whose health is failing and whose capacity might be questioned. If this person needs to make a single, urgent, and straightforward change—like naming a new executor because the original has died—a simple codicil may be less taxing to execute than a full restatement of the will. In this limited context, a targeted codicil may be less vulnerable to a challenge than a completely new document.
Another is an emergency where an immediate change is required and there is no time to prepare a new will. Even here, the change must be simple and unambiguous. For anything more complex, like revising distributions or adding beneficiaries, a new will is the safer path.
For my client in Brooklyn, the answer was clear. The birth of a grandchild was a joyful event, not an emergency. The prudent path was to draft a new will. This allowed us to incorporate the new bequest cleanly, reaffirm his other wishes, and produce a single, clear document to govern his estate. It was a simple act of stewardship that protected his family from future uncertainty.
If you are considering a change to your will, your first step is to locate the original document and list the revisions you have in mind. From there, a conversation with your attorney can determine whether a new will or, in a rare case, a codicil is the most prudent path for protecting your family’s legacy.
