BUSINESS | LITIGATION | REAL ESTATE | WILLS & ESTATES

Amending Your Will | Codicils

If you already have a will but want to make changes to it, you have two choices. You can re-write and replace your will with new one. Your other option is to sign a short document that simply amends your existing will. It is called a "Codicil".

A codicil made in Saskatchewan must be validly signed according to our Wills legislation. If not, it is invalid. It may be that the beneficiaries of your estate will all cooperate to give effect to your codicil even if it was not properly signed. However, it is far better to ensure that it has been properly signed.

Requirements of a Codicil

A codicil signed in Saskatchewan needs to be in writing, dated, signed by the testator and properly witnessed. It is normally typed and signed before 2 witnesses, just like a will would be signed. Everyone must be together when it is signed. The witnesses should not be potential beneficiaries of the will or they may find themselves excluded from their inheritance. At least one of the witnesses will need to sign an affidavit when you die to prove to the court that the codicil was validy executed. Therefore, it is best to use a witness that can be found many years later. An elderly person does not make a good witness as they may no longer be alive when you die. A neighbour may also be a poor choice for a witness as they may move away and those who survive you may not be able to find them years later. For these reasons, it is best to have a codicil prepared by a lawyer. As a professional, they will be traceable years later. They will ensure that the witness requirements are met and that the codicil is properly drafted.

Holograph Codicils

A holograph codicil means that it was written 100% in the handwriting of the deceased, dated and signed. If the court is satisfied of these elements, it will be a valid codicil. This assumes it was written in Saskatchewan by a Saskatchewan resident and relates to Saskatchewan property. I cannot say how it would be interpreted otherwise. I do not recommend holograph codicils dealing with important elements of a will. However, if you simply want to change a very minor matter such as who will receive your wedding ring when you die, it will probably be fine so long a you are prepared to accept the chance that it was done improperly and found to be invalid or interpreted different from what you intended.

Avoiding Mistakes

It is easy to make a mistake when a lay person chooses to write their own will or codicil. The results of an error or ambiguous provision can be costly and can cause litigation over what was intended. Quoting from an October 2008 decision by Mr. Justice Mills of the Saskatchewan Court of Queen's Bench: "Holograph wills are fodder for lawyers' fees ..."

If you choose to write your own codicil, you must be absolutely clear and precise. The words you use must deal with possible future changes in circumstances as well. There cannot be more than one possible way to interpret the words. I have seen many codicils that were poorly written and difficult to interpret. Often, they deal with matters that should not have been put in a will. Just as I would not attempt to change something in the engine of my car, I do not recommend writing your own will or codicil, except possibly to deal with a very minor matter that you can easily afford to be wrong on or to deal with something urgent on a temporary basis when it is not possible to have it properly drafted by a lawyer. The consequences of an error can be too costly down the road.

Do not Write on your Will and Initial It

Changes made by writing on the face of your will some time after it was signed and initialling the changes are invalid in most cases. Don't do it. Ask a lawyer for help to ensure that your will is amended properly.



Notice: The information on this website is general in nature only. It relates to Saskatchewan, Canada and may not be applicable in your jurisdiction. It does not constitute legal advice to you and no solicitor client relationship will be established. You should seek specific legal advice regarding your circumstances from a lawyer entitled to practise law in your jurisdiction.

www.rickcarlson.com | Mon, 21 Aug 2017 16:30:19 CDT1