A client came to our Manhattan office with her late father’s will—a perfectly executed document from a decade prior. But stapled to the back was a handwritten note, signed and dated just a few months before his death. The note read, “My daughter, Sarah, is to receive the house, not my son, Michael.” The family was now split, one sibling holding the formal will, the other a seemingly simple note. Their father’s attempt at a quick fix had become the subject of a bitter and expensive dispute in Surrogate’s Court.
This is the central danger of the codicil. What seems like a simple, cost-effective way to update a will often creates ambiguity and invites conflict. While legally recognized, a codicil is an amendment to an existing will, and in my practice, I have seen them cause far more problems than they solve.
The Same Rules, More Risk
Many people assume a codicil is a minor add-on, less formal than the will itself. They are wrong. In New York, a codicil must be executed with the same legal formalities as a will, as required by Estates, Powers and Trusts Law (EPTL) § 3-2.1. The testator must sign it in the presence of two witnesses, who must also sign.
Failure to meet these strict requirements invalidates the codicil. The handwritten note in my client’s case was not properly witnessed, so it had no legal effect. The original will stood, the son inherited the house, and the daughter was left with nothing but a sense of betrayal. Even when executed correctly, a codicil introduces unnecessary risk. It becomes a separate document that must be stored with the original will, and both must be presented for probate. What if the codicil gets lost, detached, or is simply forgotten? The court will probate the original will, and the testator’s updated wishes are lost.
Why a New Will Is Almost Always Better
At our firm, we view estate planning as an act of stewardship. The goal is to create a clear, unambiguous plan that protects your family and preserves your legacy. A codicil often works against this goal by creating layers of documentation that can conflict with one another.
Consider a will that leaves your entire estate to your two children, in equal shares. Years later, you execute a codicil to leave a specific brokerage account to a grandchild. Does that gift to the grandchild come out of the estate *before* it’s split between your children, or does it come from one child’s share? A poorly drafted codicil can leave this unclear, forcing a judge to interpret your intent—a process that drains the estate’s resources and your family’s goodwill.
Furthermore, a codicil can inadvertently revive a previously revoked will or create other technical legal problems. The cleanest, most prudent approach is nearly always to execute a new will. A new will entirely replaces all prior versions, creating a single, authoritative document that clearly states your final wishes. It consolidates your intentions and eliminates the risk of conflicting instructions or lost amendments.
When Might a Codicil Make Sense?
I advise against codicils in the vast majority of cases. There are, however, rare circumstances where one might be considered. For example, if a person is near the end of life and must make a single, urgent change—like replacing an executor who has passed away—a codicil might be a practical necessity. The change is minor and doesn’t alter the disposition of the property.
But even in these situations, the risks remain. The cost of drafting and executing a new will is often not significantly more than that of a codicil. When you weigh that modest expense against the potential for costly litigation, family strife, and the possibility of your true intentions being ignored, the choice becomes clear. Your legacy is not a document to be patched with staples and notes. It should be a deliberate, intentional statement of your final wishes.
Stewardship.
If your life circumstances have changed since you signed your will—a birth, death, marriage, or significant change in assets—the document must be updated. The most prudent next step is not to amend an old plan, but to review it in its entirety. We can schedule a confidential review of your existing documents to determine if they still serve your family’s generational interests.
