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Florida Probate Litigation Blog - What is a Codicil?

Posted July 17, 2016 in Florida Probate Litigation

What is a Codicil?

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In Probate, there are often strange words used to describe simple instruments. Codicil is one of those words. According to Merriam Webster, the word can be traced back to the 15th Century and has been substantially butchered along the way (Middle English codicill, from Anglo-French *codicille, from Latin codicillus, diminutive of codic-, codex). The word codicillus literally translates into "a short writing, a small writing tablet."

With the boring etymology out of the way, a codicil is that just, "a small writing" supplementing or amending a will already in existence.  It can be used to (1) alter, enlarge, or restrict provisions of a will, (2) explain or republish a will, or (3) to revoke the will.

A codicil is commonly used to change beneficiaries or personal representatives.

In probate litigation, a codicil is often used to change a beneficiary or the beneficiary's share of an estate or to change the nominated personal representative. Let's say for example, a decedent executes a will that gives all of his assets equally to two great friends, Bert and Ernie. Unfortunately, Ernie does something unspeakable to the decedent, and the decedent finds a new friend, Cookie Monster. Rather than create an entirely new will, the decedent can simply replace Ernie's inheritance for Cookie Monster's. Similarly, if Ernie was named as the personal representative of the estate, he could be replaced through the use of a codicil. 

A Codicil Must be Executed with the Same Formalities of a Will.

Even though a codicil may only be a small change to the will, the codicil must be executed with all of the same formalities of a will in accordance with Florida Statutes Section 732.502 Execution of wills. If a codicil fails to meet the requisite formalities, the codicil is invalid as a matter of law. Florida law is strict on this.

A Codicil Republishes a Will

Many people are surprised to find out that the execution of a codicil actually has the effect of republishing the previous will that is modified by the codicil. 

Can a Codicil be Revoked?

In general, a codicil can be revoked the same as a will. The codicil can be physically revoked (by shredding, burning, etc.), or can be superseded by a new execution of a will or codicil. 

It is important to know that a revocation of a will revokes all codicils to that will. § 732.509, Fla. Stat. 

A Codicil can be challenged based on undue influence and lack of testamentary capacity

Just like a traditional will contest, codicils can be invalidated if they were executed through undue influence or if the decedent lacked the mental capacity. For more information on undue influence claims in Florida, click here. For more information about testamentary capacity, click here