Difference Between Will And Codicil

Wills and Codicils are two legal documents that truly assist in securing one's estate and ensuring an unhindered transfer of assets after demise. Whereas a Will is a concept most people are aware of, less are informed as to what a Codicil is or how it differs from a Will.

In this article, we put forth:

-The basic concepts and the legal basis for a Will and Codicil

-Landmark case laws interpreting each

-A table capturing key differences between the two

-Frequently asked questions to clear common doubts

Let's begin with an understanding of Will meaning and its importance.

Will

A Will is perhaps the most basic instrument in estate planning. It allows one to dictate the manner in which his or her assets are to be distributed after death, thereby giving legal significance to his or her wishes and preventing potential disputes between family members. Under Indian law, Wills serve not just as a statement of intent but also as a binding legal document-provided these have been executed following required statutory particulars. Now before one gets into how a Will operates, it helps to know the concept behind the whole idea.

Concept Of Will

A Will is a legal declaration made by a person (the testator) regarding the disposition after his or her death of the testator's movable and immovable property. This serves to implement or gives legal force to the testator's wish and helps avoid any doubt or dispute among legal heirs.

Salient Features Of A Valid Will

• Testator must have sound mind and be above 18 years of age.
• The Will must be signed and in writing.
• At least two witnesses must attest the Will, having seen the testator sign.
• Before the death of the testator, the Will can be countermanded, modified, or replaced.

Legal Provision For Will Under Indian Law

The Will law in India is primarily governed under the Indian Succession Act, 1925. Following is the relevant provision:

Section 63-Execution of Unprivileged Wills:
It gives statutory sense to essential features of a valid Will as follows:

• The testator must sign the Will or put his mark on it.
• Such signature or mark must be made with the intention of giving effect to the writing as a Will.
• Such signature or mark shall be attested by two witnesses, each of whom must have seen the testator sign.
• This provision is applicable to all religions except Muslims, who are governed under personal law.

Importance Of Making A Will:

• Distribute property according to your intention.
• Avoid disputes and costly legal battles among family members.
• Help name legal guardians for minor children.
• Clear division of self-earned versus ancestral property.

Notable Case Laws on Wills

Gnanambal Ammal v. T. Raju Ayyar and Others

Summary: This case of Gnanambal Ammal v. T. Raju Ayyar and Others revolved around the interpretation of a Will's clauses, where the testator's intentions were contested. The Supreme Court emphasized that the true intention of the testator must be ascertained by reading the Will as a whole, ensuring that isolated expressions are not given undue importance.
Significance: It underscores the importance of holistic interpretation, ensuring that the testator's overall intent is honored.​

V. Kalyanaswamy (D) by LRs. v. L. Bakthavatsalam (D) by LRs.

Summary: in this case of V. Kalyanaswamy (D) by LRs. v. L. Bakthavatsalam (D) by LRs. The dispute centered on the validity of a Will and the testamentary capacity of the testator. The Supreme Court held that the testator was of sound mind and the Will was executed voluntarily, thereby upholding its validity.
Significance: This case highlights the importance of proving the testator's capacity and the absence of undue influence in the execution of a Will.

Codicil

A Codicil is needed when the testator desires certain amendments with respect to a Will, which by effect means that the Will must not be executed anew. This amendment is made in the form of a Codicil, which is an ancillary document meant to add, amend, or revoke any specific part of an already existing Will. Although it is often neglected, Codicils serve an important purpose in proposing the necessary flexibility in one´s succession planning. The next focus is, therefore, to understand the precise definition and application of Codicil before Indian law and practice.

Concept Of Codicil

A Codicil is an ancillary document that modifies, explains, or cancels parts of an existing Will. It doesn't replace an existing Will; it just acts in concert with the Will.

Why Go For Codicil?

• Updating the name of a legatee.
• Changing the executor.
• Where there are mistakes or details of properties to be added or corrected.
• Affecting family circumstances (birth, death, or divorce).

Legal Provisions Of Codicil Under The Indian Law

As a Codicil is equally subject to the Indian Succession Act, 1925, it shall be governed by the same legal formalities as the Will.

Codicil—Section 63 reads:

A Codicil: It must be executed by the testator with their signature or mark and attested by two or more witnesses, just like the Will.

Section 2(b) of the Act also defines a Codicil, saying:

"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 other words, under Indian Laws, a Codicil is just another document with the same force as that of a Will and is regarded as one with the Will at the time of any proceeding related with its Probate or Succession.

Legal Requirements

• It needs to have signatures and attestations just like a Will.
• It should have specific reference to the Will to which it is related.
• It should not contradict the terms of the original Will, unless that was the intention of revocation.
• In short, they best suit small updates. Generally, you should rewrite the Will if there are large changes to be made. This will help avoid confusion.

Notable Case Laws on Codicils

Kanta Yadav v. Om Prakash Yadav

Summary: This is a Codicil that changes the executor named in the original Will. in this case Kanta Yadav v. Om Prakash Yadav The Supreme Court held that a Codicil must be sufficiently expressive in terms of referring to the original Will and not repugnant to its core intention.
Importance: The case brings to light the necessity of coherency and consistency between a Codicil and the original Will.

Om Prakash Yadav & Anr. v. Kanta Yadav & Ors.

Summary: This is about the execution of a Codicil which adds new beneficiaries. in this case Om Prakash Yadav & Anr. v. Kanta Yadav & Ors. The Delhi High Court stated that a Codicil would not make a new Will but would amend all clauses of the Will as long as the Codicil is properly attested.
Importance: It illustrates the limited purpose of a Codicil and the requirement of due execution.

Comparative Analysis: Will vs. Codicil

Conclusion

Estate planning does not stop at just who gets what. It is more on clarity, avoidance of disputes, and security for your legacy. The most basic document that formally regulates your last wishes regarding the distributions of your property is a Will. A Codicil, on the other hand, allows you to make changes to that Will without the need of rewriting the entire document.

Both instruments are thereby important but must be drawn up and put into effect with precision to hold out legally. A badly drawn or improperly attested Will or Codicil can lead to endless draining traumas among families.

It is thus well-advised to involve a qualified attorney in the redrafting and modifications of such legal documents. With proper planning, you can secure your assets while at the same time assuring your dear ones tranquillity both during your lifetime and thereafter.

FAQs

Wondering how Wills and Codicils are different under Indian laws? Here are some commonly asked questions to help clear the legal and practical confusion:

Q1. What is the difference between a Will and a Codicil?

It is the principal legal document indicating how assets are to be distributed after the death of the individual concerned. Codicil, conversely, is a supplemental document that modifies, adds to, or revokes certain clauses in an already existing Will.

• A Will stands alone; a Codicil cannot exist without a Will.
• Codicils are used for minor changes, but for major changes, a new Will is recommended.

Q2. What is a Codicil to a Will?

A codicil is a written and signed document that legally alters specific parts of an existing Will without entirely replacing it. It may change beneficiaries, executors, or asset details, and must be executed with the same legal formalities as the original Will-i.e., signed by the testator and attested by two witnesses.

Q3. What are the disadvantages of codicils?

Thus, while allowing the flexibility to make changes, a codicil has the following disadvantages:
Confusion: Several codicils may result in the original will being contradicted or its instructions being unclear.

• Legal Challenges: Improperly executed codicils can be contested in court.
• Misfiled Risk: Should the codicil be lost or misplaced from the Will, it cannot be enforced. Drafting a new Will is the safest legal option for major changes.

Q4. How will Wills and Codicils be treated under the Indian Succession Act, 1925?

The creation, execution, and revocation of Wills and Codicils for all Indians not having personal laws of religion (such as Hindus, Muslims, or Parsis with special customary rules) are governed by the Indian Succession Act, 1925.

• Under Section 63 of the Act, both Wills and Codicils should be in writing, signed by the testator, and attested by two or more witnesses.
• A Codicil charges the same legal sanctity as a Will and may, if properly executed, be enforced in probate proceedings.