Our office is in the process of probating an estate of a woman who had very specific desires about her estate.   She had several specific devises, that is, she left specific items of real property to specific people.  She also had at least three codicils to her will.  A codicil is an amendment to a will.  The original will is not re-done, but instead the codicil is attached so that read together the codicil changes the terms of the will that the person wanted to amend. 

In the case of a living trust, the equivalent of a codicil is called an amendment.  Instead of rewriting the trust (also called restating the trust), an amendment is attached to the original trust agreement to show an intent to change parts of the original trust agreement.

The problem with both will codicils and trust amendments is that they tend to confuse things.  First, they are often lost or separated, so when the willmaker or trustmaker dies we don't know that they intended changes to the will or trust.  Denis Clifford writes in Nolo's Simple Will Book that "[a] will that has been substantially rewritten by a codicil (or more than one) is likely to be confusing and awkward to read at best. At worst, there may be ambiguity or even conflict between the codicil and the original will."

Second, when there is more than one codicil or amendment they are often not drafted to consider what went before.   The case I have right now is a good example.  Of the three codicils we have (there may be more that we didn't find, we'll never know for sure), the oldest is referred to as a "codicil" and refers to the will.  So far, this is fine.  Then, the next codicil is referred to as a "codicil" and doesn't reference the fact that it is really a second codicil.  Nor does it refer to the fact that this second codicil is actually not changing just the terms of the original will but the terms of the first codicil.  The latest codicil, which is the third in order,  is referred to as the "Second Codicil" because the lawyer who drafted it wasn't informed of the existence of the second codicil.  So the latest codicil says it is changing the will as amended by the first codicil but doesn't mention that it is also amending the will as amended by the second codicil.

Confused, yet?  That's my point.  The use of so many amendments to amendments results in a confusing mess that is likely to create a result that the willmaker never intended. 

I disfavor codicils and trust amendments, and when I do them I will only do a first one.  If there needs to be a second or third I strongly encourage, and sometimes insist, that the original document be re-drafted.  Is this more expensive?  Well, it can be.  But it often isn't.  If I drafted the original document first it often really isn't any more time or effort (or expense) for me to make changes to the original document than to create a new amendment.  If I didn't draft the original document than the time and expense is really in understanding the old document and counseling the client about changes.  Some of the expense also reflects that I am taking on the responsibility and liability to ensure that the older document is still valid.  I'm accepting the burden of another lawyer's drafting.  If I didn't draft the older document then I need to be compensated for that potential liability.  The drafting of paper is often the least of it. 

I liken it to remodeling an older commercial building.  Sometimes it is actually cheaper to build a new building than to inspect and strengthen the old one enough to remodel it.  Likewise, it can be less expensive in both dollars and heartache to rewrite a will or trust than to inspect and repair an existing one.