When life circumstances change, or new assets are acquired, individuals may find the need to update their existing Last Will and Testament without rewriting the entire document. In such situations, a codicil can be a practical solution. A codicil is a legal instrument that allows modifications or additions to an existing Will. In British Columbia (BC), codicils can serve as a convenient means to amend specific provisions in a Will. However, there are legal implications and potential drawbacks to consider. In this blog post, we will explore what a codicil is, its legal implications in BC, and why it may not always be the most appropriate option.
What is a Codicil?
A codicil is a formal and legally recognized document used to modify or supplement a previously executed Will. It allows individuals to make minor changes to their Will without invalidating the entire testamentary document. Codicils are subject to the same legal requirements as Wills, including the necessity for witnesses and signatures to ensure validity.
Legal Implications of Codicils in BC
- Validity and Execution:
To be legally enforceable in BC, a codicil must adhere to specific formalities, as outlined in the Wills, Estates, and Succession Act (WESA). The testator must sign the codicil in the presence of two witnesses who must also sign the document. Failure to meet these requirements could result in the codicil being deemed invalid, leading to confusion or legal disputes after the testator’s passing. - Revocation and Conflicting Provisions:
When creating a codicil, individuals should be cautious of unintentionally revoking existing provisions within their original Will. If a codicil contains inconsistent or conflicting clauses, the courts may face challenges interpreting the testator’s true intentions. It is essential to seek professional legal advice to ensure that the codicil does not inadvertently contradict any prior provisions. - Specificity of Changes:
Codicils are suitable for making minor amendments, such as updating beneficiaries’ names or adjusting gift amounts. However, for more extensive changes or a comprehensive revision of the Will, it may be more practical and less prone to errors to create an entirely new Will.
Why a Codicil May Not Be the Right Solution
While codicils offer flexibility in updating an existing Will, they may not always be the best approach due to the following reasons:
- Complex Changes:
If multiple changes are required or if the testator’s intentions are not clearly expressed, creating a codicil can lead to confusion and potential challenges to the Will’s validity. In such cases, drafting a new Will with precise language may be more prudent. - Risk of Revocation:
If the testator creates several codicils over time, each amending different provisions, there is an increased risk of inadvertently revoking essential clauses within the Will. This could result in unintended distribution of assets or beneficiaries being left out. - Disorganized Estate Planning:
Frequent codicils without proper professional guidance may lead to disorganized estate planning, potentially impacting the efficient distribution of assets and causing delays during the probate process.
Codicils in BC can be useful tools for making minor changes to a Will without rewriting the entire document. However, due to the potential legal implications and the risk of ambiguity, individuals should exercise caution when using codicils. Seeking advice from an experienced estate lawyer is essential to ensure that the codicil aligns with the testator’s true intentions and does not create unintended complications for their estate. In some cases, creating a new Will altogether may be a more suitable and secure solution for comprehensive estate planning.
