Codicils and Alterations

This blog is a recap of April 25th eState Academy's Advanced Topic Webinar hosted by Jordan Atin and Ian Hull

Wills are made to stand the test of time. There are very few life events that will have the effect of automatically altering or revoking your will. We'll discuss the major alterations and revocations in this blog post.

To watch the recording the webinar click here.

For more educational material, join eState Academy for free here.

Automatic alteration or revocation

As of today’s date, a will is automatically revoked by marriage and altered by divorce. However, Bill 245, the Accelerating Access to Justice Act, 2021, (“Bill 245”) will amend the provisions in the Succession Law Reform Act (“SLRA”) in that regard. More specifically, Bill 245 will repeal section 16 of the SLRA which automatically revokes a will upon marriage and will amend the provisions of the SLRA that deal with divorce and separation. Although Bill 245 received royal assent on April 19, 2021, the aforementioned amendments will not come into effect until a date proclaimed by the Lieutenant Governor, which will be no earlier than January 1, 2022. Accordingly, a will is still revoked by marriage. 

The following life changes do not automatically revoke or alter a will:

  1. Change in residence or citizenship 
  2. Acquisition or transfer of assets 
  3. Birth of children
  4. Death of a beneficiary

However, it should be noted that the death of a beneficiary could trigger the anti-lapse provisions under section 31 of the SLRA. If a gift is made to a child, grandchild, or sibling of a testator, with no survivorship condition (“if he/she survives me”) and that beneficiary predeceases the testator, there is an automatic change to the distribution. A survivorship clause is used to ensure that a gift can only be distributed to the intended beneficiary and not his or her heirs.

Consider the following scenario:

Jack leaves his sister Diane, $50,000.00 with no survivorship clause. Diane predeceases Jack. Jack’s gift of $50,000.00 would automatically go to Diane’s heirs (her spouse and children) as a result of section 31 of the SLRA, and therefore would not lapse. 

What is an Alteration to the Will?

An alteration is a change on the face of a will made after the Will has been properly executed. Once a will has been signed, any alteration requires the same formalities as the formal will itself. In order to preserve the sanctity of the document, alterations to the will must be accompanied by the testator’s signature and the subscription of two witnesses to the signature of the testator.

What Effect does an Obliteration Have?

If words are obliterated on the face of the will and “no longer apparent”, it has the effect of invalidating these words. “No longer apparent” means that if the court can no longer read the words, they are considered properly obliterated. Artificial means cannot be used to decipher the print. That being said, no signature is required to execute a valid obliteration. 

What is a Codicil?

A codicil is an amendment to the will and typically “republishes” the will. As such, the date of the will becomes the date that the codicil was executed. In order for a codicil to be valid, it must comply with the same formalities that are necessary to execute a valid will.

However, one benefit of a codicil is that if a will is improperly executed or there are unattested alterations, a valid codicil can have the effect of validating the will as well as the alterations included in it. 

How Can a Will be Revoked?

A will can be revoked by the execution of a new will or by an act of revocation, such as intentionally destruction by the testator. To be effective as a revocation there must be both the intention to revoke and the actual act of destruction. For example, if a testator accidentally destroys his or her will, it is technically not revoked. Revocation requires both mental and physical acts. It is important to note that a previous will is not revived by the revocation of a current will.

Presumption of revocation

There is a rebuttable presumption that a will was destroyed with the intention of revocation if:

  1. it was last in the possession of the testator; and 
  2. the original document cannot be found

This presumption can be overcome by the consent of intestate heirs and beneficiaries or by proof that the will was not intentionally destroyed.

Warnings to Clients

It is crucial that clients are warned of the importance of keeping an original will in a safe place, advising their executors of its location and reminding them not to write on the face of the Will in an attempt to change it. Lastly, Jordy likes to suggest that if they ever accidentally misplace their original, to send an email to him confirming that it was not intentionally revoked, but merely lost. That way, the beneficiaries can overcome the presumption of revocation.

Warnings to Clients

Thank you for reading!

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