Section 2(b) of the Indian Succession Act, 1925 defines ‘Codicil’ as follows:-
“A Codicil is an instrument made in relation to a Will, and explaining, altering or adding to its dispositions and shall be deemed to form part of the Will”.
In simpler words, A Codicil is a written document that makes specific modifications to an existing Will. A Codicil does not replace the original Will.
Modifications generally done by way of a Codicil are:-
- Changing the Executor appointed in the Will;
- Deletion or Addition of beneficiaries;
- Altering bequests.
How to execute a Codicil:-
Chapter II, Sections 59 to 62 of Indian Succession Act, 1925 deals with Wills and Codicils.
Chapter III, Section 63 deals with execution of unprivileged Wills.
Before we delve into the aspect of requirements for execution of Codicil, we will briefly explain what is privileged Will and unprivileged Will.
In common parlance, the same can be explained as follows:-
- Privileged Wills – can be executed by any soldier employed in an expedition or engaged in actual warfare, or an employed airman or any mariner being at sea.
- Unprivileged Will – can be executed by all other common persons other than soldier, mariner or airman.
- The mode of making a privileged and unprivileged Will are different. Section 63 of Indian Succession Act, 1925 lays down the procedure for execution of unprivileged Will. Though there is no dedicated section for execution of Codicil, the procedure prescribed under Section 63 for execution of unprivileged Will has to be followed.
Requirements for executing a Codicil:-
- Ensure that witnesses are present when you sign the Codicil and that they sign in your presence and each others presence. The date, time and place must also be clearly provided for.
- Contradicting the terms of the last valid and existing will :- Codicils Can inadvertently create when conflicts with your Original Will if not carefully drafted. Example – If, in your existing Will, you have bequeathed your house to your daughter and in your Codicil you bequeath the same house to your son, without revoking the original bequest, this would amount to contradiction and may be interpreted as suspicious circumstances and can be challenged in the court of law. Therefore, the Testator should review the entire Will before proceeding to prepare a Codicil and must identify and address provisions that might conflict with the proposed changes.
- Usage of legal Jargon or phrases which may be misinterpreted:- Ideally, clear and simple language should be used while drafting either a Will or Codicil. The language used should be unambiguous and must clearly statewhat is being added or modified or completely replaced in the Codicil.
How many Codicils can one make to a will:-
The law does not specify a legal limit to the number of Codicils one can add to a Will. But for all practical considerations, we suggest restraint. Multiple Codicils increase complexity and the risk of contradiction and confusion.