Oftentimes, a client asks me to draft an amendment to his last will and testament. Most people believe that an amendment to their Will is less expensive than having a new Will drafted.
On average, to have a Will drafted costs about $200. So, as a cost-savings, an amendment to a Will would have to cost less than $200 in order to be less expensive than having a new Will drafted.
When a man makes a Will, he is known as a testator; a woman making a Will is known as a testatrix. In order to make a Will, the testator must be eighteen years of age or older. The testator must also possesses a certain level of mental capacity, commonly known as testamentary mental capacity.
An amendment to a Will is called a codicil. In order for a codicil to be valid, the codicil must be signed with the same level of formality as the original Will. What this means is that the codicil must be signed by the testator in the presence of two witnesses, that both witnesses must also sign the Will, and that the signatures of the testator and the witnesses must be acknowledged by a notary public or other person authorized to take oaths.
A codicil changes a Will in some manner. The codicil might add terms to the Will, it might delete terms from the Will, or it might change the terms of the Will. For example, in his Will, Mr. Smith named his son Joe as his executor. Several years, later, Joe moves to California, so Mr. Smith wants to name his son Frank as his executor, because Frank lives in New Jersey and Mr. Smith thinks Frank would be able to handle his estate better, living locally. Mr. Smith signs a codicil changing his executor from Joe to Frank.
The codicil must also ratify and reaffirm the terms of the Will in all respects not being altered. So, Mr. Smith would say that he is changing his executor from Joe to Frank and that in all other respects he is ratifying and reaffirming the terms of his Will.
Now, assume that Mr. Smith comes to my office and asks me to amend the terms of his Will in order to name his son Frank as his executor. I did not draft the Will for which Mr. Smith is asking me to draft a codicil.
Because the codicil will ratify and reaffirm the terms of his Will, I would need to review his entire Will. I cannot draft a document through which Mr. Smith is reaffirming a previous document without convincing myself that the document he is reaffirming is a good document. In order to be a “good Will,” Mr. Smith’s Will must accomplish what he wants it to accomplish in a manner in which I agree.
As the reviewing attorney, if after Mr. Smith died there were some problem with his Will—for instance, the Will allocated the expenses of the estate in an inappropriate manner—I would be the person who the beneficiaries of the estate would blame for allowing Mr. Smith to reaffirm the terms of a defective Will.
As a lawyer, I sell my knowledge and time. If I am going to employ my knowledge and spend my time reviewing a Will another lawyer drafted, then I am going to have to bill for my time and knowledge. The time I spend reviewing a Will another lawyer drafted and drafting a codicil that specifically amends that Will is going to be substantial enough where the codicil to the Will is going to cost Mr. Smith more than it would have cost Mr. Smith for me to draft a new Will for him.
My point is, having a codicil drafted is not less costly than having a new Will drafted. Codicils where beneficial before computers where invented. If someone came to me and I had to type a Will for him from scratch, then I would charge more for a new Will than I would for a codicil. But with the advent of computers, drafting a new Will takes far less time than creating a document from scratch that modifies and works in unison with an old Will.