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Monday, April 12, 2010

Can't I just use a codicil instead of a whole new will?

A Codicil is an amendment to an existing Will. It's much like a mini-Will, because it has a similar format and has all the same signing/witnessing requirements as a Will. A Codicil is shorter than a Will (rarely running more than one page long) and is quicker and cheaper to prepare than a new Will.

The problem with saying that something is cheaper is that to many people, cheaper is always better. Codicils, like everything else, are useful in the right circumstances. When you need a new Will but all you're prepared to pay for is a Codicil, you're not getting the right document.

A Codicil is intended to make a small change to your Will that doesn't affect the overall structure of your estate plan. For example, if you have appointed your brother as your executor then he moves to Australia, you might not want to have someone that far away to look after your estate. To change your choice of executors, you could easily prepare a Codicil that removes your brother's name and adds a new executor.

On the other hand, if you want to change your entire distribution and set up trusts, you should probably get a new Will done.

The test I've always used to determine whether a client needs a Codicil or a whole new Will is the clarity test. Simply put, I look at the potential for anything in the documents to become confusing or questionable. If a Codicil has any chance at all of messing up the estate plan, then I recommend a new Will.

I've seen as many as six Codicils attached to one Will, which in my view is asking for trouble. Think about it. The Will is document A. Codicil B changes Will A. Codicil C changes Will A. Codicil D changes Codicil B. Codicil E changes Will A and Codicil D. The potential for mix-ups is tremendous.

I also recommend a whole new Will rather than a Codicil if the original Will is not particularly strong, or is lacking a full set of executor's powers.

So can you use a Codicil? As always, it depends on the situation.

11 comments:

  1. So....a codicil is NOT a good idea for changing the beneficiary on sizeable RRSP accounts, I take it.??

    ReplyDelete
    Replies
    1. Beneficiary on a RRSP is outside the will so no codicil is required just change the beneficiary.

      Delete
    2. Brad is right, you can just make the change at the bank. You could use a codicil, but it's not the most effective way to achieve your goal.

      Lynne

      Delete
  2. My Mom-in-law would like to add her 4 grandchildren to her will and provide the sum of $10,000 for each grandchild to be paid prior to the final distirbution of assets to her 2 children. Would a codicil be the way to go in thia instance?

    ReplyDelete
  3. My Mother in law wishes to add her 4 grandchildren to her will and provide $10,000 for each grandchild. Would a codicil be the way to go in this case?

    ReplyDelete
  4. My Mom-in-law would like to add her 4 grandchildren to her will and provide the sum of $10,000 for each grandchild to be paid prior to the final distirbution of assets to her 2 children. Would a codicil be the way to go in thia instance?

    ReplyDelete
  5. I live in Alberta and my AIP and I would like to protect our relationship EVEN IF we should separate. This may sound strange but this is what we would like. I know that in the Wills and Succession Act a former partner cannot inherit. Can we write codicils to indicate a contrary intention even if we separate.
    Thanks

    ReplyDelete
  6. My deceased parent will named her son as executor. A few years later she made/added a codicil. She added her son in law as a coexecutor. My mother wording adding my son in law to assist her son. The son states he does not need assistance and there fore does not recognize the codicil. Does the added coexecutor need to go to court to rule onthe codicil ertues

    ReplyDelete
    Replies
    1. The son doesn't have the option of picking which documents he follows and which he does not. If he refuses to use the codicil along with the will, then yes the co-executor should insist on his right to co-administer the estate. If the son won't do it the easy way then the co-executor will need to do it the hard way, i.e. get the court to rule on it. The son's risk here is that (a) after he loses in court, which is a given, he'll have to pay court costs, and (b) if the judge believes the son is too obstructive to work with, the judge might remove him as an executor.

      Wills and codicils aren't suggestions; they are legal documents that executors have to follow. Too bad the son is making a fuss over something he can't win but is a pain in the butt for everyone around him.

      Lynne

      Delete
  7. I am about to do a codicil to my will (just minor changes - adding a name and deleting a name) that does not affect the main articles in the Will. Does the witnessed codicil have to be notarized to be legal. I live in BC

    ReplyDelete
    Replies
    1. Notarizing a will has nothing to do with anything unless it is created in Quebec. No, there is no reason in the world to notarize it. Just make sure it is correctly signed, dated, and witnessed.

      Lynne

      Delete

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