Apostille for a Codicil Issued in Australia

An Australian codicil can form part of an apostilled document set, but the overseas receiver will often need the related will and, after death, a grant of probate or court-authorised copy. The correct set depends on the estate and destination. A notary may certify copies, while DFAT issues the apostille for use in a Convention country.

Key takeaways

• A codicil is a private document. DFAT says it legalises wills and similar private documents only once an Australian notary has notarised them.
• Before a death, an overseas lawyer may request notarised copies of the will and every codicil, not the codicil alone.
• After a death, the receiver may request a grant of probate or court-authorised copy that includes the will and codicils.
• An apostille confirms a signature and seal. It does not confirm that the codicil is valid, or that the will is the last one.
• Do not send an original will or codicil overseas without estate-law advice. A probate court may require and retain the originals.

Why does a codicil rarely travel alone?

A codicil is a document that changes an existing will without replacing it. It might alter one gift, appoint a new executor, or add a guardian for children, but it depends on the will for everything else. Read alone, a clause such as "I revoke clause 5 and substitute the following" means nothing to anyone who has not seen clause 5.

That is why a foreign court, land registry or bank asked to act on a codicil will commonly ask for the will and any other codicils. After a death, it may also require proof of death and evidence of the executor's authority. The useful question is therefore: which document set does the foreign authority require, in what form and in what order?

This page describes the document chain only. It is not advice on succession law, which differs between Australian states and territories and between countries. For whether a codicil is valid, what it revokes, or how it interacts with a will made abroad, speak to a solicitor, and to a lawyer in the country concerned.

What will DFAT legalise?

An apostille is a certificate issued by the Department of Foreign Affairs and Trade (DFAT) confirming that the signature, stamp or seal on an Australian public document is genuine. Only DFAT issues apostilles in Australia; a notary cannot. For countries outside the Hague Apostille Convention, DFAT issues an authentication certificate instead, and the destination country's embassy or consulate then legalises it.

DFAT's page on documents it can legalise names wills among the private documents it accepts once notarised by an Australian notary. A codicil falls in the same category. It carries the signatures of the person making it (the testator) and its witnesses, none of whom is a public official, so DFAT has nothing it can verify until a notary has put their own signature and seal on it.

A court document is different. DFAT lists court documents among the originals it can legalise, so a sealed grant of probate may be able to go to DFAT directly. Whether a particular sealed copy is acceptable is DFAT's call on lodgement, so confirm with DFAT before you rely on it.

What happens while the testator is alive?

It is uncommon for a living person to need a codicil apostilled. When it happens, it is usually because the testator owns property, a bank account or shares in another country, and a lawyer there wants to review the will and codicils now, while questions can still be answered.

The route is short. An Australian notary sights the original will and each original codicil, and certifies copies of them. The notary will not certify a copy from a scan or photocopy, because the point of the certificate is that the notary saw the original. DFAT then apostilles the notary's certificate, or authenticates it for a non-Hague country. See certified copies of a codicil for the notary's part in more detail.

Three points are specific to codicils:

• Protect the originals. Do not send an original will or codicil overseas without advice from the estate solicitor. Probate rules vary, but courts commonly require the originals. For example, the Supreme Court of NSW probate guidance says the original will and codicils must be filed and are retained by the Court.
• A notary does not make a codicil valid. A codicil is valid in Australia if it was signed with the formalities state or territory law requires, which ordinarily means signing in front of witnesses. Notarising a copy does not cure a defect in how it was signed, and is not needed for validity here. Whether it is formally valid for property in another country is a question for a lawyer there.
• Check it against any foreign will. People with assets abroad sometimes have a separate will in that country. A codicil, or a new Australian will, can clash with or accidentally revoke the foreign will if it is not drafted with that in mind. That is a drafting question for a solicitor, not something a notary or an apostille addresses.

What happens after the testator has died?

This is where most requests come from, and it is where the codicil is usually not the document apostilled at all.

Where probate is required and granted, the relevant Supreme Court issues a grant of probate in the form used by that jurisdiction. A foreign authority dealing with estate assets may request the grant because it evidences the executor's authority. The will and codicils may be included with, annexed to or obtained as a court-authorised copy of that grant. Ask the issuing registry and overseas receiver which form is required.

That matters when a family has found a later codicil, or one the court did not accept. What the foreign authority acts on is the grant and the documents annexed to it. A codicil that is not part of the grant is a matter for the Australian court and a solicitor, and apostilling a copy of it will not change what the grant says.

The usual chain after a death:

1. Obtain the required court record and ask the registry whether a sealed copy, exemplification or other court-authorised copy is available.
2. Ask DFAT whether it will take that sealed copy directly as a court document. If it will not, an Australian notary certifies a copy of the sealed grant with its annexed will and codicils.
3. Lodge with DFAT for an apostille, or for an authentication certificate if the country is outside the Convention.
4. Embassy legalisation, for non-Hague countries only, at that country's embassy or consulate in Australia.
5. Translation, if the country needs one, in the order the receiving authority specifies.

Could overseas recognition require more documents?

Some countries have their own procedure to recognise or reseal a foreign grant and may request further documents such as a death certificate. In NSW, the Court explains that an exemplification is a sealed, court-authorised copy of the grant and can be used where such a copy is required. Other courts use their own terminology and process. A registry-issued death certificate has its own DFAT route. Ask the overseas lawyer for the complete list before starting. Documents after a death overseas covers the other direction.

What does an apostille on a codicil prove?

Families sometimes hope an apostille will settle an argument about a codicil. It cannot. The apostille confirms whose signature and seal appear on the document DFAT was given, which is usually the notary's. It says nothing about what the codicil says, whether the testator had capacity when signing it, or whether it was later revoked.

The notary's certificate is narrow too. On a copy, the notary certifies that it is a true copy of the original they sighted. If the notary witnessed the testator sign, they certify the signing and the identity checks they made. A notary never certifies that a document's contents are true. For more on the notary's role, see notarising a codicil.

How do common situations compare?

Situation	Document that usually goes to DFAT	Who acts first
Living testator, foreign lawyer reviewing	Notarised copies of the will and every codicil	Australian notary
After death, assets abroad	Grant, exemplification or other court-authorised copy requested overseas	Supreme Court registry, then DFAT or a notary
Country reseals or recognises the grant	Grant, plus a death certificate and whatever else is listed	Foreign lawyer sets the list
Codicil witnessed by a Justice of the Peace	A notarised copy; the JP's signature cannot be legalised	Australian notary
Non-Hague country	Same documents, with an authentication certificate	DFAT, then that country's embassy

The Justice of the Peace row catches people out. Anyone who meets the state or territory's requirements can witness a codicil, and a JP often does. That does not make the codicil a public document. DFAT legalises Australian public documents, and a JP's signature on a private document is not one, so the codicil still needs a notary before DFAT. The JP's role in witnessing the signing is unaffected.

What translation and recency rules apply?

For a country that works in another language, translate the will, every codicil and the grant together. A translator working on the whole set can render the amendments consistently, so that "clause 5" in the codicil matches clause 5 in the will. A codicil translated in isolation is hard to follow and easy to misread.

If the translation needs its own apostille, it must be finished before you lodge with DFAT. DFAT's published requirements apply to translations by a NAATI certified or recognised translator, including identifying and signing details on every page. Some countries prefer their own sworn translators, so ask the receiving authority first. See NAATI translation with a notary.

The terms of a codicil do not expire merely because time passes. However, an overseas receiver may impose an issue-date window on a court copy or death certificate. Ask for the precise window before ordering a fresh document.

Is the destination in the Apostille Convention?

Whether an apostille is enough depends on the destination. If the country is a party to the Apostille Convention, the apostille completes the Australian process. If it is not, DFAT issues an authentication certificate and the country's embassy or consulate in Australia legalises it. Membership changes, so check the HCCH status table on the day. The Hague Apostille Convention explained sets out the difference, and what to do if DFAT issued the wrong certificate covers the common mistake.

What might the process look like in practice?

A woman in Perth dies leaving a will and two codicils; the second appoints her nephew as executor in place of her late husband. She also owned an apartment in the Netherlands. Her nephew obtains a grant of probate from the Supreme Court of Western Australia, with the will and both codicils annexed. The Dutch notary handling the apartment asks for the grant with an apostille and a Dutch translation. The nephew asks DFAT whether it will take the sealed copy directly; when it cannot, an Australian notary certifies a copy of the sealed grant with its annexures. A NAATI translator translates the set, and DFAT apostilles both the notarised copy and the translation. Nobody apostilled a codicil on its own.

How much does the codicil document process cost?

The total may include obtaining a court-authorised copy, notarial certification, DFAT's apostille fee, translation, courier or travel charges, and advice about Australian or foreign succession law. More documents, copies and destinations can mean separate certificates and fees. Request an itemised estimate after providing the estate status, document set, destination authority, number of copies, location and deadline. Check current court and DFAT fees rather than relying on an old figure.

What should you remember?

A codicil is rarely the only document an overseas authority needs. Before a death, it may request notarised copies of the will and codicils; after a death, it may request a grant, exemplification or another court-authorised copy. DFAT authenticates the relevant Australian signature or seal, not the codicil's validity. For the Australian steps, see apostille and authentication or document notarisation.

Related questions

• Does a codicil need a notary in Australia?
• How do I get a certified copy of a codicil?
• Which documents can be apostilled in Australia?
• What does the Netherlands need for Australian documents?
• Can I get an apostille online in Australia?

Dealing with a codicil for use overseas? Send us the document set, estate status, destination authority, copy requirements, location and deadline. We can explain the Australian notarial and DFAT steps before you book.