League and Williams Lawyers

Tag: will modification

  • Codicils: Making a Small Revision to Your Existing Will

    Codicils: Making a Small Revision to Your Existing Will

    It’s not uncommon for a will-writer to want to make a modification to an outdated will that they’ve written years ago. Often times, will-writers only want to make small changes to their will – maybe changing a single sentence in the will or adding a beneficiary to the will. It can be tempting to simply cross-out the sentence and handwrite a new provision underneath; however, the courts may not consider this a valid modification. Instead, will-writers should either create a new will, or create a codicil.

    You can use a codicil, usually a small document, to make amendments to a will. The document specifies any changes to the original will that the will-writer would like to make. Two people must sign and properly witness the codicil, just as they do when creating a valid will. After that, store the codicil with the original will, where it acts as an additional part of the will. Codicils are great for simple modifications, but shouldn’t be used when the changes are complex.

    Writing a Codicil vs. Re-writing the Will

    Anything that is removed or modified in the original will through a codicil will still be visible to any interested parties.

    While a codicil is straightforward, it’s not always the best option available when you want to modify your existing will. If you need to make complex changes, it’s recommend to draft an entirely new will. Codicils describing complex changes can become complicated and difficult to understand. Drafting unclear testamentary documents can expose will writers to risk of litigation after their death.

    Some common changes that would be easy to make with a codicil include:

    • Changing the executor of the will;
    • Changing who will be the legal guardians of your children;
    • Adding a new beneficiary to the will; or
    • Changing a beneficiary’s name if they have legally changed it.

    For each of these simple changes, the intentions of the testator are clear and do not have complex consequences on the rest of the original will, so a codicil is sufficient.

    When To Write a New Will

    Here are some scenarios where writing an entirely new will is suitable:

    • When an existing beneficiary of the will is to be removed;
    • If there is already an existing codicil for the will and this change would be the second codicil attached; or
    • If there are any changes related to trust accounts that are being made.

    For these scenarios, it’s much more difficult to briefly describe the change as the implications on the terms in the existing will are likely to be broad. For example, if a will-writer wishes to remove their nephew as a beneficiary through a codicil, they must specify who will receive the share of the estate originally intended for the nephew. If the nephew was going to receive multiple gifts in the will, redistributing each piece to other beneficiaries could make the codicil too complicated. Further, if privacy is a concern, a new will is more private than a codicil. After writing a new will, will writers can choose to destroy their old will.

    It’s always best to be as clear as possible when expressing your intensions in estate planning. If there is a chance that a dispute over the meaning of the codicil could arise after your death, it’s usually a better idea to simply write a brand new will.

    If you are unsure about how you should go about making a revision to your will, contact an experienced estate lawyer today. Good advice can help ensure that there are no complications in your will/codicil after you have passed away.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • I Need to Make a Change to My Will: Who is Authorized to Do So?

    I Need to Make a Change to My Will: Who is Authorized to Do So?

    It’s not uncommon for will writers to want to make changes to their will at some point. In fact, will writers are encouraged to frequently review their wills and make changes where necessary. Sometimes, will writers are in a different city than the hard copy of their will, or can’t access it. A question that arises is: “can someone make a change in my will for me, if I authorize and certify it?”. In short, no – the will writer is the only person who is able to make changes to their will. In this blog, we’ll look at the different ways that will writers can make valid changes to their wills and when the courts will make changes to wills.

    Will Writer Changing the Will

    As of June 23, 2020, witnesses are able to electronically witness a will in BC through a video conference.

    Will writers can make changes to their existing will by either making a codicil or re-writing the will altogether. A codicil is a supplementary document which specifies the changes the will writer wishes to make to the original will. Whether creating a codicil, or a whole new will, the changes must be written, signed by the will writer in the presence of two or more witnesses and signed by these witnesses.

    When will writers follow the proper procedures, it’s relatively easy it make a legally valid change to their will. Complications arise when will writers don’t have their changes witnessed, assuming the previous witnessing of the document is still valid. When this happens, the courts are sometimes able to validate the change. The change must be clearly representative of the writer’s final intentions. As seen in a recent BC case, using white-out could be ruled to be a valid change to a will.

    Power of Attorney, a Spouse, or Children Changing the Will

    A common misconception people have is that their power of attorney (POA) is able to make modifications to their will. A POA is given the authority to make financial and legal decisions on someone’s behalf. However, POAs are never authorized to make edits to their testator’s will. This is important because POAs are often appointed when someone is most vulnerable, being of old age or poor health. Further, no spouse, child, or any family member is able to make an edit to another person’s will.

    The will writer must be present at the time of any edits being made and able to sign the document. Only the writer of a will has legal authority to make edits to it. Family, POAs and friends can persuade a will writer, but they can’t physically make the provisions or place undue influence on the writer to make changes.

    Courts Changing the Will

    In some cases, BC courts will vary a will when it’s ruled to be unfair. This isn’t a traditional change to the will, as it is done after the writer has passed away. In BC, children and spouses of will writers are entitled to ‘adequate provision for the proper maintenance and support of their lives’ from the estate. When a will writer fails to make this provision, the courts will vary the will to remedy this. A recent case in BC demonstrates when the courts would vary a will to provide for children who have been unfairly disinherited.

    The courts can also rectify a will when it’s believed that there was an error made by the will writer. The claimant must be able to prove that the error wasn’t reflective of the will writer’s final intentions.

    What Can You Do?

    If you’re in a scenario like the one above, seemingly unable to make a change to your will, there are other options available. If you’re in a different physical location than your original will, you could re-write the will exactly as you had before. In this new will, you would need to include a provision stating that you’re intending to revoke any previous wills you have written. If you are physically unable to write a will, you can have someone assist you in the preparation. In order for this to be valid, you, the will writer, must be present, and understand and approve of the contents of the will. Further, a signature is still mandatory.

    If you wish to make a change to your will, contact an experienced estate lawyer today. We will ensure that any change you wish for is a valid change and your will won’t be questioned or modified upon your passing.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Whiting-Out or Erasing Part of a Will: Valid Modification?

    Whiting-Out or Erasing Part of a Will: Valid Modification?

    After a testator has finished writing their will, they may want to make a modification at a later date. There are specific procedures that will-writers must follow for any revision in a will to be legally valid. While it can be clear what the testator had intended by their revision, unofficial changes to the document can result in a lengthy court process to cure the will to make the change legally valid.

    Valid Will Alterations in BC

    Section 54 of the Wills, Estates and Succession Act (WESA) identifies the circumstances in which modifications to a will are valid. The criteria for a valid modification is the same criteria for the initial creation of a valid will. In order for a will’s modifications to be legally valid in BC, it must:

    1. Be in writing;
    2. Be signed by the testator, and;
    3. Be properly witnessed and signed by the witnesses (two or more people).

    Sometimes, it’s unreasonable to expect the above steps for a simple revision. S.54 of the WESA further explains these requirements can be set aside when:

    1. The alteration is not substantive;
    2. The alteration is to adjust form, style, or a typographical error;
    3. The alteration is made effective by an order pursuant to the courts curing the will.

    To explain part 3, the Courts can rectify an error in a will to ensure the will reflects the testator’s intentions and is valid. This happens when the will-writer had a clear intent to modify the will, but did not make a valid modification or made a mistake. The courts can rectify an error when it’s clear that the testator made a mistake.

    Using White-Out to Modify a Will

    Eraser marks and white-out could be used to validly modify a will.

    Levesque Estate (Re) (2019) asked whether a will in BC could be validly modified using White-Out, a white-coloured liquid used to cover ink on paper. The will-writer originally wrote in her will to equally split her estate amongst her children and eldest grandchild. After her death, beneficiaries discovered that the provision giving a share of the estate to the grandchild was covered with White-Out.

    The Court’s Decision

    Unfortunately, in this case there were no witnesses or signatures to verify the modifications. Since this is not a valid modification, the Courts looked into whether the requirements could be avoided. The alteration was substantial and the original was not completely illegible – when held under light, one could easily read what was under the white-out. The only way this alteration could be valid was if the Courts cured the will to rectify the error. The Courts ruled that the intention of the will-writer was to remove the grandchild from the will. The lack of proper procedures in making the change was not sufficient to prevent her intentions from being followed. The grandchild was legally removed as a beneficiary of the will. Because the claim arose from the actions of the will-writer, the estate paid for the associated legal costs.

    If you want to make a modification to your will, it’s important to follow the proper procedures in doing so. There must be two witnesses of your signature. Failing to follow the adequate procedures will likely result in Court proceedings, like in the example above. While the will-writer’s intentions were followed, the trial costed significant time and money for the estate and beneficiaries. Further, a will-writer cannot be certain that the Courts will uphold a change. It’s not always possible to establish that the will-writer made the change.

    If you want to make a revision to your will, contact an experienced estate lawyer today. We’ll ensure your will is modified validly.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.