Posts Categorized: Estate Planning

Can I just do a codicil or is an entire new will necessary? That is a question I am frequently asked. The answer is: it depends. Although that sounds like a non-answer, the truth is: it really does depend.

A codicil is a document that revises existing will terms, revokes sections of a will, or adds to the existing will. Once signed – and a codicil must be signed with the same formalities as a will – the codicil and will become one document. The codicil does not replace the will, it is added to the underlying will and both become the legal direction for the estate. A codicil restates the sections of the original will that have not be changed by the codicil – and therein lies the problem.

Because both the codicil and will are now the legal document, there is always the danger that some of the terms may be inconsistent. Unless the lawyer has also prepared the original will, they may be reluctant to prepare a codicil for the will. Even if they have prepared the will, most lawyers will encourage the client to simply start fresh with an entire new will. The danger of having inconsistent clauses, upsetting heirs, inaccurate or unintended bequests, outweighs the cost of doing a new will. Connecticut Junior Republic v. Doherty, 20 Mass. App. Ct. 107 (1985) (charitable beneficiaries possibly mistakenly replaced in second codicil were not entitled to recover since testator had read the codicil).

Only if the changes are very minor.

– Change in Distribution Plan. The distribution of an estate is the very reason the will was done. When the distribution plan changes, a new will should be drafted. Once signed, the old will should be destroyed. Copies of the old will – if any – should also be destroyed. For this very reason, copies of a will should not be given to anyone. Clients change their minds, family dynamics change, and personal relationships may improve or deteriorate. If an heir has an expectation of an inheritance, based on a copy of an old will they have in their file, there will likely be a challenge to any new will that eliminates or reduces their expected share.

– More than One Codicil. If a first codicil has already been done, and more changes are needed, an entire new will should be done. Having two or three codicils that change specific parts of a will makes the probate process more complicated. It is also difficult to keep track of so many papers. Submitting a will to the Probate Court with a document labeled “Second Codicil,” is naturally going to lead to the question: “Where is the First Codicil?” If it cannot be located, the executor will have to seek instruction from the Court on how to proceed.

– Change in Executors. It may be that a change in executor can be done using a codicil. If the primary executor has passed away, or no longer wants the job, a codicil may be sufficient. On the other hand, some heirs look at being appointed executor as a sign of approval, and may not appreciate being replaced by a sibling. Further, an executor may be compensated for doing the job, and may feel it is their right to be appointed and paid. If that is the case, a new will should be done.

In almost every case, I feel a new will is the better way to go. A will is the document left behind that details the distribution of your estate. The wishes expressed should be clear, consistent, and hard to contest. Trying to use a codicil to alter such an important document can cause significant confusion and may lead to expensive probate litigation.

Every month I send an E-Newsletter that has articles on estate planning and elder law topics. If you would like to subscribe to this E-Newsletter please feel free to sign up.

This months topic is “Women: Law and Money.” Although many of the issues discussed in this issue also apply to men, there is one that research shows is much more common to women: The Daughter Syndrome. Throughout their lives, it seems that women are far more often the primary caretaker for loved ones. Whether it is children, parents, grandparents, or even a spouse, many women find themselves in a role of caring for others.

This issue of my Newsletter suggests three steps to surviving and planning while being the primary support for loved ones.

Every month I send an E-Newsletter that has articles on estate planning and elder law topics. If you would like to subscribe to this E-Newsletter please feel free to sign up.

This months topic is “Tomorrowitis.” Many people pass away without any plan in place. There are lots of reasons for this: people think they do not need a written plan, the thought of doing a Will makes them uncomfortable, they can not decide a distribution plan or select the executors. One thing that may help clients begin the process, is that with a typical estate plan, anything can be changed or modified.

There is a recent interesting case from Canada that shows what can happen to a family when someone dies and leaves things in a mess. Mr. Barrick died at 102 years old. He had a valid Will, but because he distrusted banks, he kept all his money in his home. After Mr. Barrick died, his son found $96,000.00 in the house, which he gave to his three sisters. His sisters, however, believed that there was another box full of money in the house – $210,000.00 worth – that he never mentioned. So, they took him to Court. The Judge ultimately found that there was not enough evidence to conclude that the box of money ever existed.

The saddest part of the whole situation was identified by the Judge: “[T]he children of Mr. Barrick are in court sad, broken, and hopelessly divided on this issue, for which there shall never be any happy resolution. Alvin’s once happy family is torn asunder by the very thing he did not care about – money – or perhaps the very thing he cared too much about to protect his children from their fate of being siblings squabbling over money he may have had.”

Read the full opinion: Barrick v. Lilliste, 2011 ONSC 1847 (2011).

Preparing for an Initial Estate Planning Meeting