How to Notarise a Codicil in Australia

A codicil does not need a notary to be valid in Australia: it is valid if signed with the same formalities as a will under state or territory law. A notary helps when the codicil must work overseas, by witnessing the signing and certifying it in a form a foreign authority can rely on. Have a solicitor draft it first.

Key takeaways

• A codicil changes a will without replacing it. Its validity in Australia comes from proper execution under the wills law of the state or territory, not from a notarial seal.
• A notarial certificate cannot cure a missing witness or any other defect in how a codicil was signed.
• A notary is useful when a codicil affects assets abroad: the notary can witness the signing and certify it, so a foreign authority does not have to trace the witnesses.
• At the signing, the notary checks identity, understanding and freedom from pressure, and may ask to see the will-maker alone.
• Whether a codicil or a new will is right, and whether it works under foreign law, is advice for a solicitor and a lawyer in that country.

Notarisation is not what makes a codicil valid

A codicil is a short document that alters a will: adding or changing a gift, replacing an executor, appointing a guardian, correcting a name. In Australia it is valid because it was executed with the same formalities as a will under the wills legislation of the relevant state or territory. Broadly, the will-maker signs in front of witnesses who are present together, and the witnesses then sign. A beneficiary who acts as a witness can put their own gift at risk. The detail differs between jurisdictions and is not something to guess at.

That legislation, not a notarial seal, decides who must be present, who may witness and what happens if something goes wrong. A notary can be one of the witnesses. But a notary's seal does not stand in for a missing witness, and a codicil that was not properly executed is not rescued by being notarised afterwards.

So if you are changing your will, the first call is to a solicitor. That matters more for codicils than for most documents, because a codicil is read together with the will and every earlier codicil, and small amendments easily 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 the better choice is legal advice, and outside what a notary provides.

When a notary is actually involved

People who need a notary for a codicil are usually in one of three situations.

Making a codicil that must work overseas. If you hold property, bank accounts or shares in another country, the authorities there may later need to accept the codicil without tracking down the witnesses. A notary who witnesses the signing can attach a notarial certificate recording who signed, when, and what was checked, which a foreign authority can rely on once DFAT has confirmed the notary's signature. Some countries also have their own form requirements for testamentary documents, so the codicil, or a separate will for those assets, should be prepared with advice from a lawyer there.

Copies for use abroad. An overseas bank, registry or court may want certified copies of the will and codicils, either during the will-maker's life or after a death. That is a different notarial act, covered in certified copies of a codicil, including why the staples must stay in.

After a death. Most foreign authorities then want the grant of probate, which carries the will and codicils, apostilled. The DFAT side is in apostille for a codicil.

This page is about the first situation: the notary's part in signing a codicil.

A note on foreign "notarial wills"

People with ties to civil law countries, such as much of Europe and Latin America, sometimes ask for a "notarial codicil" because at home a notary prepares testamentary documents as formal public instruments. An Australian notary does not play that role. An Australian notary is usually an experienced solicitor appointed under state or territory arrangements, who witnesses, certifies and administers oaths; a civil law notary is a different kind of officer with a different job.

If the foreign country's law requires a public instrument prepared by one of its own notaries, an Australian notarial certificate is not a substitute. A lawyer in that country can say whether its consulate in Australia offers that service, whether a document signed here will be recognised, or whether a separate will made there is the better route.

What happens at the signing

Testamentary documents are where a notary's checks matter most, because the will-maker is often elderly or unwell, and family members may stand to gain from the change. The notary is not a formality here: they may decline to act if they are not satisfied.

1. Identity. The notary checks the will-maker's photo identification against the name in the codicil and the will. Differences in spelling or a former name should be explained before the day.
2. Understanding. The notary satisfies themselves that the will-maker knows what the codicil does, usually by asking them to explain it in their own words.
3. Free choice. The notary looks for signs of pressure. It is common to ask to speak to the will-maker without family members in the room, especially anyone who benefits from the change.
4. Signing. The will-maker signs in front of the witnesses the state or territory law requires, one of whom may be the notary, and the witnesses sign.
5. The certificate. The notary completes a notarial certificate recording the signing and the checks made, and records the act in their register.

If the notary has real doubts about capacity, they may suggest a medical opinion first or decline to act. That protects the will-maker and the codicil: a codicil signed without capacity is open to challenge however carefully it was witnessed. Capacity and duress checks explains what notaries look for.

Preparing for the appointment

• Do not sign early. A notary witnesses a signature by watching it made.
• Arrange the witnesses. Ask the solicitor how many your state or territory requires and whether the notary can be one. Choose people who take nothing under the will or codicil.
• Leave the will alone. Do not staple the codicil to the original will, and do not remove staples from it. Marks of attachment can raise questions at probate. Bring the will only if the notary asks to see it.
• Plan for mobility. If the will-maker cannot travel, ask in advance how a signing can be arranged. Some notaries can attend elsewhere by arrangement; availability varies, so ask rather than assume.

Codicil or witness: who does what

Task	Who does it	Notary needed?
Drafting the codicil	A solicitor	No
Valid signing for Australian purposes	The will-maker and the required witnesses	No
Signing a codicil that must work abroad	As above, with a notary witnessing and certifying	Often helpful
Certified copies for a foreign authority	A notary	Yes
Confirming the notary for a foreign country	DFAT	Only DFAT can

After the signing: DFAT and translation

The notarial certificate is an Australian act. For a country in the Hague Apostille Convention, the Department of Foreign Affairs and Trade (DFAT) issues an apostille confirming the notary's signature and seal. For other countries, DFAT issues an authentication certificate and the destination's embassy or consulate legalises it. Only DFAT issues these; no notary can. Check membership on the HCCH status table on the day. DFAT's page on documents it can legalise names wills among the private documents it accepts once notarised.

Many people do not apostille a codicil at signing at all. They keep the original safely in Australia with the will, and deal with authentication later, when a foreign authority actually asks. That avoids apostilling a document that may be superseded by a later will. If the codicil must be translated, translate it with the will so that references to clauses match; see NAATI translation with a notary.

Here is an illustration, not a real case

A retired engineer in Brisbane owns an apartment in Spain and wants to change the executor named in his Australian will. His solicitor advises a codicil and checks with a Spanish lawyer, who says a codicil to the Australian will is workable for the apartment but that a notarised signing will help later. At the appointment, the notary checks his identity, asks him to explain the change, and speaks to him briefly without his daughter, who is the new executor. He signs in front of two independent witnesses, one of them the notary, and the notary completes a certificate. The original goes back into the solicitor's safe custody, unapostilled, until it is needed.

In short

A codicil is valid in Australia because it was signed with the formalities state or territory law requires, not because a notary was involved. A notary helps when the codicil must work overseas, by checking the will-maker's identity, understanding and free choice, witnessing the signing and certifying it for DFAT. Have a solicitor draft it first. For the notarial step, see power of attorney and legal declarations or document notarisation.

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