Certified Copy of a Codicil in Australia

A certified copy of a codicil should almost always be made together with the will and any earlier codicils, from the originals, without removing any staples. For Australian use a solicitor, a JP or another authorised person can usually certify it. For use overseas, a notary certifies the copies, or after a death the court's sealed grant usually replaces them.

Key takeaways

• A codicil amends a will and makes little sense alone. Copy and certify the will and every codicil together, in date order.
• Do not unstaple or unclip the originals to copy them. Marks of removed attachments can raise questions when the will goes to probate.
• For Australian recipients, a copy certified by a solicitor, a Justice of the Peace or another person the recipient accepts is usually enough.
• For overseas recipients, a JP copy will not do. A notary certifies the copies, and DFAT apostilles or authenticates the notary's certificate.
• After a death, most recipients want the grant of probate, which carries the will and codicils, rather than a copy of the codicil.

Why a codicil is never copied alone

A codicil is a document that changes a will without replacing it. It might alter a gift, appoint a new executor or add a guardian, but it depends on the will for everything else. A clause such as "I revoke clause 4 and substitute the following" means nothing to a reader who has not seen clause 4.

So whenever someone asks for "a certified copy of the codicil", the useful response is to certify the whole testamentary set: the will, every codicil in date order, and anything the documents incorporate. A good certificate describes each document it covers, so a reader can see nothing is missing. A copy of the codicil on its own invites the obvious question, "amending what?", and a second trip.

This page is about copies only. Whether a codicil is valid, what it revokes, and how it interacts with a will made abroad are questions for a solicitor. A certified copy of a defective codicil is still a copy of a defective codicil.

Leave the originals exactly as they are

This is the most practical point on the page, and it is a physical one. Original wills and codicils are often stapled, clipped or bound together. Leave them that way.

When a will is presented for probate, a court registry may look closely at its physical condition. Holes from removed staples, clip marks or signs that pages were once attached to something else can prompt questions about whether anything has been removed. Answering them can mean an affidavit explaining the document's history, and delay for the executor. The simplest way to avoid that is never to create the marks.

A careful certifier can copy a bound document without taking it apart; a page that will not lie flat can be copied in sections. If someone suggests unstapling "just to get a clean scan", say no.

Who has the original

Original wills and codicils are often not with the person who made them. A solicitor may hold them in safe custody, or a trustee company, or a public safe-custody service run by the state or territory. Whoever certifies a copy must sight the original, not a photocopy or scan, so the custodian has to be part of the plan.

• While the will-maker is alive, the custodian will usually release the originals, or allow them to be copied, only on the will-maker's instructions.
• After a death, the custodian will usually deal only with the executor, and may want identification and a death certificate first.
• Some custodians will not release originals at all, but will provide copies certified by their own staff. For Australian use that may be all you need.

If the custodian is a solicitor, ask whether they can certify the copies themselves. For most Australian purposes a legal practitioner's certified copy is widely accepted, and it avoids moving the originals anywhere.

Who can certify, for which recipient

The right certifier depends entirely on who will read the copy, and on whether the will-maker is still alive.

For Australian recipients

While the will-maker is alive, Australian recipients rarely ask for a codicil at all. When they do, for example a financial adviser, an aged care provider or a family member's solicitor, a copy certified by a solicitor, a Justice of the Peace or another person the recipient lists is usually enough. A JP is a free volunteer witness for Australian purposes. There is no single national list of who may certify a copy for every purpose: each recipient sets its own, and many borrow the list of people who can witness a statutory declaration. Follow the recipient's instructions exactly.

After a death, Australian banks, share registries and super funds generally want to see the grant of probate, not the codicil, because the grant shows that a court has accepted the will and codicils and appointed the executor. Many accept a copy of the grant certified by a solicitor or JP; some want a sealed copy from the court. Ask each one.

For overseas recipients

A foreign lawyer, bank or land registry cannot check an Australian JP or solicitor, and will not rely on their certification. What it can rely on is an Australian notary public, usually an experienced solicitor appointed under state or territory arrangements, whose signature and seal DFAT can confirm.

While the will-maker is alive, the notary sights the original will and codicils and certifies copies of the set. DFAT then issues an apostille on the notary's certificate for countries in the Hague Apostille Convention, or an authentication certificate for other countries, followed by legalisation at that country's embassy or consulate. DFAT's page on documents it can legalise treats wills as private documents that need a notary first, and a codicil is in the same position. Check the destination on the HCCH status table on the day.

After a death, the document that usually travels is the sealed grant of probate with the will and codicils annexed. Court documents are among the originals DFAT lists as legalisable, so a sealed copy may be able to go to DFAT directly; if DFAT will not take it, a notary certifies a copy of the sealed grant first. Confirm with DFAT. The DFAT side is covered in apostille for a codicil.

What each certifier confirms

Every one of these certifications is narrow, and it helps to know how narrow before you rely on it.

A JP, solicitor or notary certifying a copy confirms that the copy matches the original they sighted. None of them confirms that the codicil was properly signed and witnessed, that the will-maker had capacity, or that it is the latest version. A notary checks the pages so that the copy is complete, but does not read the documents for their legal effect or advise on them.

Situations compared

Situation	What to certify	Who certifies
Living will-maker, Australian adviser	Will and every codicil	Solicitor, JP or listed person
Living will-maker, assets abroad	Will and every codicil	Notary, then DFAT
After death, Australian bank or registry	Grant of probate with annexures	Court sealed copy, or a certified copy the recipient accepts
After death, assets abroad	Sealed grant with will and codicils	DFAT directly, or a notary first
Codicil found after probate	Nothing yet	See the estate's solicitor first

Step by step, for overseas use

1. Ask the recipient which documents it wants and in what form: copies of the will and codicils, or the grant.
2. Arrange the originals with whoever holds them, bearing in mind that a custodian may deal only with the will-maker or the executor.
3. A notary certifies the set, describing each document, without taking the originals apart.
4. Translation, if the country needs it, of the whole set together so "clause 4" in the codicil matches clause 4 in the will. Where DFAT is to legalise it, the translator must be NAATI certified or recognised.
5. DFAT issues an apostille or authentication, and an embassy legalises it for a non-Hague country.

If several recipients need copies, prepare them together. Each overseas copy needs its own DFAT certificate; see getting multiple certified copies. For the notary's broader role with codicils, including witnessing, see notarising a codicil.

Here is an illustration, not a real case

A retired teacher in Hobart has a will and two codicils held by her solicitor, and a holiday house in Italy. An Italian lawyer advising on the house asks to see "the codicil". Her solicitor explains that the Italian lawyer will need the will and both codicils to make sense of it. The solicitor arranges for a notary to sight the originals. The notary copies the three documents with their staples intact, and certifies the set with each document described. DFAT apostilles the notary's certificate, and a translator prepares an Italian version of the whole set. Her Australian financial adviser, who asked for the same documents that month, is given copies certified by the solicitor.

In short

Certify a codicil together with the will and any earlier codicils, from the originals, with every staple left in. For Australian recipients, a solicitor, JP or other accepted person can usually certify the set. For overseas recipients, a notary certifies it and DFAT confirms the notary, and after a death the sealed grant usually does the job instead. For the notarial steps, see document notarisation or apostille and authentication.

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Asked for a copy of a codicil for use overseas? Send us what the recipient asked for, and we will explain each step before you book.