Three ways not to update your will

The do-it-yourself update is a recipe for trouble

Your Will is an expression of your last wishes and sometimes, as circumstances and family dynamics change, you will need to update your Will to reflect these changes. But these updates should not be taken lightly and, if not done properly, can put your entire estate plan in jeopardy.

This blog highlights three of the ways not to update your Will:

1. Telling anyone and everyone except your lawyer

One surefire way to cause confusion is to “update” your Will by telling people you are updating your Will and then not following through.

This is especially true when a promise is made to someone. For example, a parent telling one child that they are going to change their Will to give them the cottage but then telling the other child something completely different. Another example: If one child is receiving money from the parent during their lifetime and the parent promises the other children they are going to “equalize” everything under the Will but then does not. These verbal declarations with no written confirmations could lead to hurt feelings and conflict among the beneficiaries.

Actions speak louder than words, and without actually changing your Will to document your new intentions, your promises and assertions are not enforceable by the disappointed beneficiary.

2. Writing notes on your will

Making notes or comments directly on your Will, or even a copy of your Will, is also not the way to go.

You may think that crossing out a beneficiary’s name or adding another legatee would be a simple fix to your Will. However, under Ontario law, these handwritten amendments to your Will are only considered valid if next to the amendment is the testator’s signature, as well as the signatures of two witnesses.

Initials will not suffice, nor would having only the testator’s signature.

Writing notes could also cause confusion when you are only considering making amendments. If you are going through a copy of your Will and making notes in the margins for further consideration, there could be a concern that these notes, whether they are just thoughts or incomplete planning ideas, could be misconstrued as your intention to revise your Will.

3. Preparing your own amendment

Maybe you know better than to write directly on your Will, so instead, when you decide you want to make a small amendment, you do so on a separate piece of paper.

This amendment is referred to as a “codicil,” which, like a Will, must meet certain criteria to be valid.

The law allows you in Ontario to prepare a holograph codicil just as you can a holograph Will, but this route is not recommended. In order for it to be considered valid, it must be wholly in the testator’s own handwriting and must be signed at the end by the testator, and does not need to be witnessed.

Particular attention to the wording of the codicil is important – if not worded properly, this document could inadvertently revoke your entire Will, which is why you should always seek legal assistance when you wish to revise your Wills.

A new substantial compliance rule was introduced as of January 1, 2022, and a Will can now be found to be valid by a Judge if it substantially complies with the execution requirements of Ontario law. This means that in some cases, a document other than a “formal” Will may be treated as a Will.

Ultimately, to ensure your new wishes are properly documented and to avoid any potential conflict, you should execute either a formal Codicil or create a brand new valid Will. Although you are allowed to change your mind when it comes to your Will, you should not be changing your actual Will without legal assistance.

Stephanie Battista is a partner at O’Sullivan Estate Lawyers. She practices exclusively in estate and trust law, focusing on all aspects of estate planning and estate administration in order to provide clients with sound and helpful legal advice. She advises clients on their succession plan including wills, trusts, powers of attorney and domestic contracts. She also advises executors, trustees, and attorneys on their duties and obligations, and provides guidance through the complexities of the estate administration process as well as estate and trust accounting. This article originally appeared in the O’Sullivan Estate Lawyers blog. Used with permission.

Notes and Disclaimer

This article is the opinion of the writer and is meant to be general in nature, limited to the law of Ontario, Canada. It is not intended to provide specific personalized advice on any individual situation, including, without limitation, investment, financial, legal, accounting or tax advice. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate to your particular circumstances.