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A codicil is a testamentary document similar but not necessarily identical to a will. In some jurisdictions, it may serve to amend, rather than replace, a previously executed will. In others, it may serve as an alternative to a will. In still others, there is no recognized distinction between a codicil and a will.
The concept of a testamentary document similar to but distinct from a will had its origins in Roman law. In the pre-classical period, a testator was required to name an heir for a will to be valid (heredis institutio). Failure to name an heir or failure to follow the proper formalities for naming an heir would result in an estate divided by the rules of intestacy. However, a testator was also able to create a fideicommissum, a more flexible and less formal indication of the testator's intent which could have the effect of transferring part or all of an estate after death, although with fewer rights to the beneficiary than those of a named heir.
A codicillus (diminutive of codex) was a written document subject to less stringent formal requirements than a will (testamenta) that, in its initial use, could supplement or change an existing will, provided the codicil was specifically mentioned (confirmed) in the will. However, if the will did not confirm the codicil, all directives in the codicil were considered fideicommissa. Furthermore, a will that did not name an heir could be considered a codicil. Thus, where a testator did not name an heir, his will would be considered a codicil, and his bequests would become fideicommissa. This "opened a way to save certain dispositions in a will which was invalid due to some formal or substantive defect": if a testator failed or chose not to name an heir, an estate would go to heirs via rules of intestacy, but those heirs would be burdened by the fideicommissa in the codicil.
By the time of the Codex Justinianus, the formal requirements related to wills had relaxed, while requirements for the codicil had become more stringent. "There was thus little difference between the formalities for a will and for a codicil," and an invalid will – where, for example, no heir had been named – could often be upheld as a codicil.
It is acknowledged that classical Roman succession law was "highly complicated and to a large extent perplexedly entangled".
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The codicil remained a distinct entity to a will (testament) to varying degrees throughout the Roman-influenced legal world. The concept of heredis institutio (a will requires an heir) was part of the jus commune up until modern times.
In the United States, a codicil is a document that changes an existing will. Amendments made by a codicil may alter, explain, add to, subtract from, or confirm – and otherwise amend a will in any other way, minor or major, short of complete revocation. It is subject to the same formal requirements as a will.
- Reid et al., Testamentary Formalities (Oxford University Press, 2011), c. 1 p. 9.
- Id. at 11–13 (discussing limited gifts).
- Online Etymology Dictionary, Codicil.
- Id. at 15–16, 17.
- Id. at 16
- Id. at 24.
- Fritz Schulz, Roman Law (Oxford, The Clarendon Press 1951)
- Klein et al. c. 2 p. 33.
- See Black's Law Dictionary Free Online Legal Dictionary 2nd Ed., Codicil ("A testamentary disposition subsequent to a will, and by which the will is altered, explained, added to, subtracted from, or confirmed by way of republication, but in no case totally revoked. . . . A codicil is an addition or supplement to a will, either to add to, take from, or alter the provisions of the will. It must be executed with the same formality as a will, and, when admitted to probate, forms a part of the will.").
- Sample last will codicil (United States)