Why I Prefer to Draft a New Will Instead of a Codicil

There are two ways lawyers use to make changes to a will: draft a codicil or draft a new will.

A codicil is simply a document amending an earlier will. In British Columbia the same formalities are required for a codicil as for a will. (See my post on the formal requirements for making a will.)

Typically, a codicil will provide that certain clauses in your will are deleted, and new clauses substituted for the deleted clause. In your codicil you may then confirm the rest of your earlier will.

After your death, if your executor requires probate to deal with your estate, he or she must then probate both the will and the codicil together. In British Columbia, in order to apply for probate, the executor is required to mail a copy of the will and the codicil to all of the beneficiaries, as well as to the deceased’s nearest relatives (those who would inherit if you died without a will, and those who may make a claim under the Wills Variation Act.)

This means that all of the beneficiaries will see the changes you made to your will. In some cases, the beneficiaries may be disappointed to see that you have reduced their shares of your estate.

If you do a new will when you wish to make changes instead of a codicil, then after your death, your executor will need to apply to probate only the new will. Your executor will not need to send copies of your older will to the beneficiaries, or others entitled to notice. It is less likely that any beneficiaries whose shares of the estate have been reduced will see the earlier will.

Is it more work to do a codicil than a will? Does it cost more?

In many cases, I find it as easy as or even easier than drafting a new will than to make a codicil. If I prepared the earlier will, then my office will often have it on our computer, and all we need to do is make the changes on our word processor. If a different lawyer drew the earlier will, I may be more comfortable using will precedents that I frequently use than working with a will prepared by a lawyer who uses a different style of drafting.

I don’t think doing a new will should cost more than a codicil, but different lawyers have different methods for charging for their work. In many cases, I spend more time talking to my clients, getting information from them, and giving advice, than preparing the documents. If a client, for whom I have recently done a will, requires minor changes, the cost will be relatively low, regardless of whether I prepare a codicil or new will. On the other hand, when I meet someone for the first time to do estate planning, I am going to take a fair amount of time talking to my new client before I make any changes, even if they are minor. My bill will reflect the time I spend in getting information from my new client, again irrespective of whether I prepare a codicil or a new will.