Today’s blog was written by Najib Painda, Wills & Estates Law Clerk at Fasken LLP
As you may know, the purpose of a Codicil is to effect minor changes within an existing Estate plan without the need to create a whole new Will.
In today’s age of technology, where new documents can be produced with relative ease, Codicils are becoming less common. When a client is looking to make changes to their existing Will, especially those clients with multiple Wills, the process becomes much more complicated to some degree. The upshot is that the choice between making changes by way of a Codicil or preparing a new Will, does not always lead one to choose the Codicil route.
Codicils and multiple Wills
Wills often involve intricate legal terms, the meaning of which is intertwined with a variety of provisions in the Will, such that changes to those terms can be complex to implement via a Codicil. In some cases, where there are multiple Wills used, like Primary, Secondary and even Tertiary Wills, the overall structure may be too complex to simply add or delete clauses as the whole structure of the Will plan may be affected depending on the nature of the changes being implemented, making using a Codicil to implement the change difficult. For example, a testator may welcome a new addition to the family — this may necessitate the inclusion of additional clauses such as: a guardianship clause; providing for the distribution of a RESP (Registered Education Savings Plan); changes to the bequest of personal effects; the creation of a new trust; and, an additional beneficiary to the estate.
Leaving all of the potential complexity to trying to implement changes by a Codicil, the often over-looked consideration is that if a change to a Will is implemented by a Codicil, the beneficiaries will see the original terms of the Will and the changed terms through the Codicil. Consideration should be given to the message being sent to the beneficiaries impacted by the changes, as a result of the particular changes being implemented.
Where does this leave the estate planning lawyer if a client inquires if changes can be made by Codicil? Where changes are being considered to a Will plan that are complex or that involve multiple Wills, it is considered best practice that the Will and estate plan as a whole be revisited and in all likelihood brand-new Wills prepared. What qualifies a situation as complex may vary, but situations involving changes to beneficiaries; the acquisition of shares of a company; the division of the residue of the estate; and, the existence of pre-existing Codicils, are ones that warrant thinking more carefully about how amendments are implemented.
Codicil or new Will?
There are many factors for both lawyer and client to consider when requesting changes to a Will plan. Often there is a perception that implementing changes by way of a Codicil is more cost effective, compared to preparing a brand-new Will. This may be true in circumstances requiring only simple changes. However, given the challenges that can arise with relying on Codicils to make amendments to a Will plan, preparing new Wills may be more cost-effective from a monetary and emotional perspective.
The benefits of a new Will
When a testator prepares a new Will, it gives the testator peace of mind as the Will is more up-to-date with their current wishes. Depending on the complexity, the fee for drafting and executing a new Will may very well be in line with that of a Codicil. Additionally, clients can benefit from this approach by receiving a fresh new document with a current date as opposed to adding a Codicil to their pre-existing Wills. Finally, beneficiaries have no notice of the nature of the changes that were made as the last Will is the document that will be delivered to them.
Given the above, it is important to emphasize the complexities of Will drafting when working with clients who are interested in utilizing a Codicil to implement changes and have a discussion with them about whether using a Codicil is the right approach, having regard to the factors discussed in this blog.
Until next time…thanks for reading