How to Notarise a Codicil in Australia

A codicil is a short document that changes a will without replacing it: adding a gift, swapping an executor, correcting a name. People who need a notary in connection with one are usually in one of two situations. Either they are making a codicil that will affect assets or proceedings overseas, or someone has died and an overseas bank, registry or court wants proof of what the will and its codicils say.

Before either, one point needs to be clear.

Notarisation is not what makes a codicil valid

In Australia, a codicil is valid because it was executed with the same formalities as a will, under the wills legislation of the relevant state or territory. That legislation, not a notarial seal, decides who must be present, who may act as a witness and what happens if something goes wrong. Broadly, the will-maker signs in front of witnesses who are present together and who then sign themselves, and a beneficiary acting as a witness can put their own gift at risk. The detail differs between jurisdictions and is not something to guess at.

A notary can act as a witness. But a notarial seal does not stand in for a missing witness, and a codicil that was not properly executed under state law is not rescued by being notarised.

So if you are changing your will, your first call is a solicitor, not a notary. That applies with particular force to codicils, because a codicil must be read together with the will and any earlier codicils, and small amendments often produce inconsistencies: a gift that now appears twice, a residuary clause that no longer adds up, an executor appointed in one place and removed in another. Whether a codicil or a fresh will is right for you is legal advice, and outside what a notary provides.

When a notary is actually involved

Making a codicil that must work overseas. If you hold assets in another country, the authorities there may want the execution notarised so it can be accepted without tracking down witnesses. Some jurisdictions also have their own form requirements. Where that is the case, the codicil, or a separate will for those assets, should be prepared with advice from a lawyer in that jurisdiction. The notary then attends to execution.

Certifying copies after a death. This is the more common request. An overseas bank, share registry, land office or probate court wants to see the will, every codicil and usually the Australian grant of probate. The notary sights the originals and certifies copies.

A codicil means nothing on its own

This is the point specific to codicils, and it is where overseas requests most often go wrong.

A certified copy of a codicil sent without the will it amends tells the receiving authority almost nothing. It refers to clauses the reader cannot see. Expect to need certified copies of:

• the will
• every codicil, in date order, including ones that seem irrelevant to the overseas asset
• the grant of probate or letters of administration, if the person has died, which is normally issued with the will and codicils annexed
• the death certificate

Once a grant has issued, the court's copy with the testamentary documents annexed is often what the foreign authority actually wants, and the notary certifies a copy of that rather than of loose originals.

Handle the originals with care

Original wills and codicils are often held in a solicitor's or trustee company's safe custody. Arrange for them to be produced to the notary rather than posted around.

Do not remove staples, clips or bindings from an original will or codicil to copy it, and do not staple a codicil to the will yourself. Probate registries examine the physical condition of original testamentary documents, and marks suggesting something was once attached and later removed can prompt questions, sometimes a sworn explanation, that delay the grant. Let the notary copy the documents exactly as they are.

At the appointment

When a codicil is being signed, the notary confirms your identity, satisfies themselves that you understand what you are signing and are acting freely, and watches you sign alongside any other witnesses the law requires. Capacity and freedom from pressure matter more for testamentary documents than for almost anything else a notary sees, and you may be asked to see the notary without family members in the room.

For certified copies after a death, the executor or the solicitor holding the originals usually attends, with identification.

Apostille or legalisation

The notarial certificate is an Australian act. If the destination is a member of the Hague Apostille Convention, DFAT issues an apostille over the notary's signature and seal. If not, DFAT authenticates it and the destination's embassy or consulate legalises it. No notary can issue an apostille.

Where the foreign authority wants the grant of probate itself authenticated, ask whether the court document should go to DFAT directly or through a notary. The answer depends on the document and the destination.

What it costs

Notarial fees are not fixed by statute and vary between practitioners and states. As a market estimate only:

• certifying one document: roughly $80–$150
• each additional document or copy at the same appointment: roughly $20–$50
• attending the signing of a codicil: often at the upper end or above, because the notary is assessing capacity, not just copying

What drives the cost up for a codicil is the size of the bundle. A will, two codicils and a grant is four documents, and several overseas institutions may each want their own certified set. Apostilles are charged per document, and a translation, if needed, covers the whole set rather than the codicil alone.

Frequently asked questions

Does a codicil have to be notarised to be valid in Australia? No. Validity comes from proper execution under the wills legislation of your state or territory.

Can a Justice of the Peace certify copies for an overseas probate? Not for overseas use. A JP's certification is not recognised abroad and cannot be apostilled. A notary is needed.

Can I just write the change on my will instead? Handwritten changes to a signed will raise their own validity problems. Speak to a solicitor before marking the original in any way.

The codicil is in English but the assets are in a non-English-speaking country. What then? Expect to need a certified translation of the will, codicils and grant together. Confirm with the receiving authority whether translation happens before or after the apostille.