Apostille for a Codicil Issued in Australia

A codicil is a document that amends a will. It is one of the few documents that almost never makes sense to authenticate on its own, and understanding why saves people from paying for an apostille on a document no foreign authority will act on.

A codicil has no meaning without the will it changes. It might alter one gift, appoint a new executor or add a guardian, but it depends on the will for everything else. A foreign court, registry or bank asked to act on "the codicil" will want the will, every codicil, and usually proof of the testator's death and of the executor's authority. So the question is rarely "how do I apostille a codicil?" It is "which set of documents does the foreign authority need, and in what form?"

This page describes the document chain. It is not advice on succession law, which differs between Australian states and between countries.

During the testator's lifetime

It is uncommon for a living person to need a codicil apostilled. Where it happens, it is usually because the testator holds property or assets abroad and wants a foreign lawyer to review the will and codicils now.

In that case the codicil is a private document. No official signature is on it, so DFAT has nothing to verify. The route is a notary certifying a true copy of the original codicil — and, since the codicil cannot be read alone, of the will as well. DFAT then apostilles the notary's certificate.

Three points specific to codicils:

• The original stays in Australia. The original will and codicils will be needed for a grant of probate in the state where the testator lived. Send certified copies abroad, never the originals.
• A notary does not make a codicil valid. A codicil is valid in Australia if it is executed with the formalities state law requires, which ordinarily include signing in the presence of witnesses. Having it notarised does not cure a defect in execution, and it is not needed for validity here. Whether the codicil is formally valid for property in another country is a question for a lawyer in that country.
• Check the codicil against any foreign will. People with assets abroad sometimes have a separate will in that country. A codicil to the Australian will, or a new Australian will, can conflict with or accidentally revoke a foreign will if it is not drafted with that in mind. This is a drafting issue for a lawyer, not something a notary or an apostille addresses.

After the testator's death

This is where most requests arise, and where the codicil is usually not the document that gets apostilled at all.

Once an executor obtains a grant of probate from the Supreme Court of the relevant state or territory, the court issues the grant with the will and any codicils attached. A foreign authority dealing with assets in its jurisdiction will usually want that grant, because it is the document that proves the executor's authority. The codicil travels as part of it.

The grant is a court document. Whether DFAT can apostille a court-sealed copy of the grant directly depends on whether it holds a specimen for the court officer who signed or sealed it — confirm this with DFAT. Where it cannot, a notary certifies a true copy of the sealed grant, with its annexed will and codicils, and DFAT apostilles the notary's certificate.

Some countries have their own process for recognising or resealing a foreign grant, and may require additional documents such as a death certificate. A death certificate is a registry document with its own route to DFAT. Ask the foreign lawyer or authority for the complete list before starting.

Recency

The codicil itself does not go stale. But foreign authorities often want a recently issued sealed copy of a grant of probate, and a recently issued death certificate. Order those close to when they will be used.

Translation

For non-English-speaking jurisdictions, the will, every codicil and the grant are usually translated together, so that the translator can render the amendments consistently. A codicil translated in isolation from the will it amends is difficult to read and easy to misinterpret. Use a NAATI-certified translator and confirm with the foreign authority whether the translation is authenticated with the documents or done in the destination country.

Hague or not

Whether an apostille is sufficient depends on the destination. If it is a member of the Apostille Convention, the apostille completes the Australian process. If not, DFAT authenticates the signature and the destination's embassy or consulate in Australia legalises it. Membership changes; check the HCCH status table on the day.

Frequently asked questions

Can I get an apostille on just the codicil? In principle, on a notarised copy of it. In practice, a foreign authority will almost always also need the will, and after death the grant of probate.

Does an apostille confirm the codicil is valid? No. It confirms a signature and seal. Validity depends on how the codicil was executed and on the law of the place where it is being used.

My codicil was witnessed by a JP. Can that be apostilled? Not the JP's signature — DFAT holds no specimen for it. A notary can certify a copy of the codicil, and it is the notary's signature that DFAT authenticates.

The will was made in one state and the codicil in another. Does that matter? It can, for validity and for which court grants probate. Ask a lawyer.