Rewriting Your Will versus a Codicil

Neufeld Legal | Calgary, Alberta wills and estate planning lawyer, advising clients in developing and implementing their personal succession plans.

Contact Neufeld Legal PC at 403-400-4092 or Chris@NeufeldLegal.com

When you need to make changes to your will, there are two primary options available: (1) using a codicil or (2) rewriting the will entirely. The choice between these two depends largely on the nature and extent of the changes you want to make, although it may also be impacted by the sufficiency of the existing will in relation to updates in applicable legislation and probate procedures, such that even though the changes might be minor, it might be advantageous to have the will rewritten to take advantage of certain procedural changes that could be advantageous for your executor in implementing your will, especially given the high likelihood that it will need to proceed through probate (with the interest in avoiding probate not being a concern in Alberta, as it is described in other jurisdictions where probate fees can be significant).

Codicil

A codicil is a separate legal document that is used to make minor additions, deletions, or modifications to an existing will. It does not replace the original will but acts as an amendment to it.

Key characteristics of a codicil:

• For Minor Changes: Codicils are generally suitable for simple changes, such as:

  • Changing the name of an executor.

  • Adding or removing a specific bequest (e.g., leaving a specific item to a new person).

  • Making minor adjustments to a beneficiary's share.

• Must be Formal: A codicil must be executed with the same legal formalities as a new will. This means it must be in writing, signed by the testator (the person making the will), and witnessed by at least two people who are not beneficiaries of the will.

• Creates Two Documents: The codicil is a standalone document that must be stored with the original will. When the time comes to administer the estate, the executor must review both the original will and all codicils to understand the testator's final wishes.

Rewriting a Will

Rewriting a will means creating a brand-new will that completely replaces and revokes all previous wills and codicils. Although, given advances in technology rewriting an entire will is not necessarily as tedious and time-consuming as it used to be, especially as it enables you to oftentimes modernize the will so as to take advantage of procedural developments that can make probate faster and more efficient for the executor.

Key characteristics of rewriting a will:

• For Substantial Changes: Rewriting is the best option when you are making significant or numerous changes to your will. This includes situations like:

  • Getting married (which often revokes an existing will unless it was made in contemplation of the marriage).

  • Getting divorced (which can invalidate provisions for a former spouse).

  • Having new children or grandchildren.

  • Making major changes to your beneficiaries or the distribution of assets.

  • If your financial situation has changed dramatically.

• Clarity and Simplicity: A new will is a single, clear document that reflects all of your current wishes. It eliminates the risk of confusion or conflict that can arise when an executor has to interpret multiple documents (a will and several codicils).

• Explicit Revocation: A new will should always include a revocation clause, which explicitly states that it revokes all previous wills and codicils. This is a crucial step to ensure that there is no ambiguity about which document represents your final wishes.

Suggestions as to When to Choose Each Option

• Suggest proceeding with a Codicil if: You have a very simple and specific change, like updating an executor's name or adding a small gift. This was a more common practice when wills were handwritten, but with modern technology, it's often more straightforward to just create a new will.

• Suggest proceeding with Rewriting the Will if:

  • You are making more than one or two changes.

  • The changes are substantial (e.g., changing beneficiaries, disinheriting someone, or changing the entire asset distribution).

  • Your personal circumstances have changed significantly (e.g., marriage, divorce, birth of a child).

  • You want to avoid any potential confusion or legal challenges that might arise from interpreting multiple documents.

If you are working with the same lawyer that previously drafted your will, it almost always makes sense to have the will re-written. Meanwhile, if you are working with a new lawyer, based on my own professional experience, there tends to be additional changes that are required, which go beyond the initially contemplated changes, as well as making approptiate modifications that add clarity to the will and/or makes its process that much more effective, especially where new procedures can be added to the document. The added cost and effort of creating a new will are usually outweighed by the increased clarity, reduced risk of legal disputes, and peace of mind that comes from having a single, comprehensive, and up-to-date document.

Contact our law firm today to learn how our legal team can help you plan for the future (e.g., wills, trusts, estate planning) or deal with the legal demands associated with the passing of a loved one. Contact our law firm at 403-400-4092 or Chris@NeufeldLegal.com to schedule a confidential initial consultation.

 

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