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When and how to Change a Will?

Last revision:
Last revision: December 3, 2019
Last revision:
Category: Marriage, Divorce and Family

A Will is a legal document that outlines your wishes regarding the distribution of your property and the care of any minor children. If you die without a Will, you are said to have died "intestate" and those wishes may not be followed. Further, your heirs may be forced to spend additional time, money, and emotional energy to settle your affairs after you're gone.

Even if wills do not expire, a Will should be reviewed and updated from time to time to make sure that it reflects your wishes as your circumstances evolve.


When to update your Will

Once you have a Will, it is very important to keep your Will updated. As your circumstances change, so do potential beneficiaries and heirs. Keeping your Will updated ensures that your Will reflects your wishes given your current circumstances. Therefore, when the following changes occur in your life, you may want to consider updating your Will.

Marriage

When you get married, both you and your spouse should each create a new Will. Provinces and territories have laws that award a percentage of your estate to your spouse upon your death. However, if you want to devise your Will differently, you should specify this in your Will. Furthermore, adding your spouse to your Will may change the percentage of your estate, or of a specific asset, that another beneficiary or heir was previously written to receive. Changing a Will should reflect this new proportion as you see fit.

Common Law Partnership

In certain provinces and territories, you may be considered as common law partners if you live together for a certain number of years. Generally, there are several requirements that must first be met for a valid common law partnership and these will vary according to the province in which you live. If you meet these terms, the law may dictate that your partner is entitled to a certain portion of your estate.

New partnership, without marriage

Only if married will your partner automatically receive assets from your estate. Therefore, if you find yourself with a new loved one, changing a Will to reflect what you would like to leave that partner is necessary.

Divorce

Changing a Will upon a divorce is very important. You will want to either specify what you want to leave your former spouse, or else specify how those gifts should now be distributed.

A new child

There are laws that give children some portion of your assets upon your death. However, not everyone wants their property to be distributed the way the provincial or territorial laws specify. If you welcome a new child into your family, be sure to specify what gifts, the child shall receive, by changing your Will.

Perhaps more importantly, be sure to appoint a guardian for the child. This will be the person who will care for your child should anything happen to you. It's important to note that the person named as the guardian in a will is not legally obligated to serve.Therefore, it's generally considered good practice to list at least one alternate guardian. If you are still married or in a relationship with the other parent of your children, you may want to consider discussing it with your spouse or partner to name the same person and any alternate. If you are divorced or separated, you may think that you don't need to name a guardian. However, under certain circumstances, your will might control the guardian designation - in the event the other parent of the children predecease you for example.

These considerations apply whether the new child is your birth child or an adopted child.

New stepchildren

Stepchildren are not automatically entitled to inherit a share of your property depending on the province or territory. If you would like for your stepchildren to inherit any of your property, be sure to specify your wishes by changing your own Will.

Changing your mind about heirs

Of course, things can happen in life that cause people to change their minds about the way in which they'd like their property distributed. Changing a Will to reflect these new wishes is important.

New or disposed of assets

If in your Will you leave all of your property or a percentage of your property to your heirs, then when what you own changes, there is no need to change your Will. However, if you have willed certain gifts to people in your Will, and you no longer have those properties, be sure to remove said property from your Will. Additionally, when you acquire new property, be sure to account for that in your Will.

Other changes of circumstances

Other changes in your life that should make you consider updating your Will:

  • you own a business and are thinking about retiring or selling;
  • you buy a vacation property in another country;
  • one of your children has an addiction, bankruptcy or other problem that interferes with handling money;
  • you have become estranged from one of your children;
  • you want to set up charitable giving through your Will;
  • your spouse is experiencing early signs of dementia;
  • your financial status has changed, for better or worse, since you made your Will; and
  • you have moved to a different province or country.


How to update your Will

New Will

The easiest way of changing a Will is simply to make a new Will. It is imperative that you revoke the old Will. To do this, simply write a statement in the new Will that states that you revoke all wills and codicils that you have previously made. This is sufficient to revoke any previous wills, but it is wise to also destroy any of your previous wills in order to avoid confusion or challenges to your new Will.

In order to be valid, a Will does not need to adhere to any specific form, or feature certain language. However, the document must disclose your intention in making dispositions of your property to come into effect at death.

A typical Will usually provides that all debts of the estate including taxes should be paid first (although they are payable anyway). It names one or more Executors, who will be responsible of administering the estate, and then set out the powers of the Executor(s) in administering the estate. It may provide for their compensation or it may be silent, in which case compensation is governed by the common law. A Will then sets out any specific gifts of property or money that are to be made. Whatever is left after all of the specific gifts have been given and all debts have been paid is called the residue of the estate. A Will should contain a residue clause specifying how the residue should be distributed. The residue is often the largest part of an estate, but its value will depend on your assets and debts at the time of your death and cannot be determined at the time the Will is made. The larger the specific gifts or debts, the smaller the residue.

For a Will to be formally valid it must be signed by the testator and two witnesses at the same time in the presence of each other. The witnesses must not benefit under the Will.

Codicil

The other way to change your Will is by adding what is called a Codicil. A Codicil is like an amendment or addition to your Will. Use a Codicil to revoke part of your Will or add a new provision. To be valid, they must be dated, signed, and witnessed just like a Will. Codicils were an efficient way of changing a Will before there were computers and printing was a hassle. They can cause confusion, be lost, and are sometimes even a means to challenge Wills.

A Codicil makes frequent reference to the original Will that it is amending. Therefore, you should have access to a copy of the Will that you can make reference to as you are creating the Codicil. When at all possible, the exact text of the provision that is being deleted or changed should be included in the Codicil. The Codicil gives you the following three options for changing your Will:

  • Adding a new provision -- This option could be used for purposes such as adding a new beneficiary or asset
  • Deleting an existing provision -- This option can be used to delete entire provisions or just portions of existing provisions
  • Changing an existing provision -- This option could be used for purposes such as replacing one beneficiary with another

Once you do all of the necessary changes, you should number and initial the bottoms of the pages by hand, and then date and sign the document in the presence of two witnesses. For a Codicil to be formally valid, it must be signed by the testator and two witnesses at the same time in the presence of each other.

 

How to choose between a new Will and a Codicil

Is a Codicil - a small amendment to a Will - the best way to change or modify an existing Will, or is writing a whole new Will better?

If you are just making one or two simple changes, then a Codicil is the best way to go. However, if you are going to be making several or complex changes, you might prefer to just get a brand new Will. It is more straightforward and it is easier for everybody to follow at the end of the day. Although there is no legal limit on how lengthy a Codicil can be, but says that doesn't mean it's appropriate for complex estate changes.

You may also want to think about privacy. For example, if you have decided to disinherit someone and you're doing it in a Codicil, everyone Will be able see what the original decision was.

Situations in which you may prefer to add a Codicil

  • Changing an executor – if your choice of executor has passed away, or no longer wants the job, naming a new executor is simple;
  • Changing guardianship – if the Will named guardians that have moved or divorced, the change can be made in a Codicil;
  • Adding a beneficiary – adding a new beneficiary (e.g. a new grandchild) to the original Will is simple;
  • Adding to an existing bequest – in other words, boosting a gift that already exists within the Will instead of adding a new bequest.

Situations in which you may prefer a new Will

  • Removing beneficiaries – any disinheritance (particularly the act of disinheriting children) is likely to cause conflict or friction among your heirs, and is better dealt with in a new Will;
  • Concerns about privacy – if you do not want anyone (particularly beneficiaries) to see the terms of the old Will, then write a new one;
  • Dealing with multiple codicils – the more codicils, the greater chance of confusion, contradiction and/or lost paperwork.


Templates and examples to download in Word and PDF formats

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