Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.
This is the second of a series of blogs about Codicils (Ontario). In the first blog, I talked about what Wills are and how they can be amended through a Codicil (instead of having to re-write a new Will). Recall that a Codicil is part of and to be read alongside your Will. Here, I’ll be discussing some of the legal requirements to have a valid and enforceable Codicil, as well as whether a lawyer is required to prepare one.
What are the legal requirements for a Codicil to be valid?
There are only a few requirements for a Codicil to be valid and enforceable. But if you don’t do these basic things properly, the Codicil and /or Will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc.
First, in Ontario, for a Codicil to be valid, it must be in writing. So says the Succession Law Reform Act.
Second, a Codicil must be made by a legally competent person (i.e. the Testator / Testatrix must be 18 years old or older and mentally capable of making a Codicil). This is often a litigious issue: some will claim that the person making the Codicil was not sufficiently competent to make the Codicil as they did not understand the purpose and effects of making the Codicil. Worth mentioning is that a person under 18 years old CAN make a Codicil if he or she is married or if he or she is in the Canadian Armed Forces.
Third, the Testator / Testatrix must sign the Codicil before two witnesses who are both present during signing. The witnesses must also acknowledge that this was done – typically through an affidavit attached to the Codicil. It is also a good idea to have these affidavits in case the Will needs to be “probated” through the courts (i.e. legally processed to establish the validity of a Will before a judicial authority): if probate is necessary, and many years have passed since the Codicil was signed and witnessed, the witnesses will need to be located for the purposes of giving affidavits. To avoid wasting time and money locating witnesses, it is best to simply have them sign affidavits at the same time they witness and sign the Codicil. It is not necessary for witnesses to see or read any part of the document. The Testator / Testatrix’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the Codicil. Neither of the witnesses can be beneficiaries (and this has been used to challenge Wills before). Also, the Estate Trustee is not a competent witness to prove the execution of its will or its validity: section 14 of the Succession Law Reform Act. It is a good practice for all parties to initial in the bottom right hand corner of every page leading up to the signing page. While there may be other requirements for a Codicil to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the Codicil and / or Will as litigation-proof as possible.
Worth mentioning is that “Holographic Codicils” (like “Holographic Wills”) are acceptable and do not require the presence or attestation or signature of a witness to be valid: section 6 of the Succession Law Reform Act. Holographic Codicils are wholly written by the testator in his or her handwriting and signed and dated. People are cautioned against writing their own Codicil in this manner as it may lead to the Will being challenged.
Is a Lawyer Required to Prepare Your Codicil?
While a lawyer is not legally required for you to have a Codicil drafted, reviewed, or executed, it is nevertheless in your best interests to do so. Only a few things are needed in order for a Codicil to be legally binding and enforceable. But if you don’t do these basic things properly, the Codicil may be contested through litigation.
In addition to ensuring that the legal requirements of drafting a Codicil are met and that the specific wishes of the Testator are addressed, a lawyer will typically deal with a number of other issues that could jeopardize the validity of a Codicil.
First, a lawyer will inquire into the mental state of the Testator. A lack of capacity to enter into the Codicil may be grounds to invalidate it. In Banks v. Goodfellow, 1870 WL 11622 – the English Court of Queen’s Bench famously wrote (in respect of Wills, but which is equally applicable to Codicils):
“It is essential to the exercise of (the power of testation) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
If there is a doubt as to the Testator’s mental capacity to enter into the Codicil (e.g. due to age or physical, mental or emotional illness, etc.), the lawyer may call an appropriately qualified medical practitioner to be present at the time instructions are given. Those instructions may also be video recorded.
Second, a lawyer will also try to make sure that the Testator is not entering the Will as a result of some duress or improper or undue influence from an external force. The Testator must enter the Will freely and voluntarily or else it may be subsequently contested. A lawyer will typically exclude interested parties from being present at the time the Testator executes the Will.
Third, a lawyer will be able to discuss with you income tax, probate, and statutory claim considerations. When you die, you are automatically deemed to have disposed of (immediately before death) all your assets for fair market value under section 70(5)(a) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). As such, any resulting taxable capital gains have to be included in your income in that year. These capital gains, however, can be deferred through the use of a spousal rollover, which a lawyer can help structure. If you own shares of a qualified small business corporation (which a lawyer can advise you on), you may also be entitled to a lifetime capital gains deduction (which is presently $375,000). With respect to minimizing probate fees, there are a number of legal possibilities which can be canvassed with your lawyer – such as transferring assets into joint ownership, designating beneficiaries of RRSP’s, RRIF’s and insurance policies, establishing an inter vivos trust, and executing multiple wills. Finally, your estate may be liable to pay your dependents (pursuant to section 58 of the Succession Law Reform Act) and spouse (pursuant to sections 5 and 6 of the Family Law Act, R.S.O. 1990, c. F.3) more than what they would otherwise be entitled to under your Will. A lawyer can help you address these results. In the case of your spouse, for example, a lawyer can draft a marriage contract that would preclude your spouse’s ability to entitlements under the Family Law Act.
Finally worth mentioning is that, a lawyer is required to act in connection with International Wills (discussed below). For these reasons, it is generally advisable to contact a lawyer when you need to prepare your will.
By the way, if you have a Will and are looking for an Ontario Codicil to make changes to it, you’ve come to the right place:
This legal form can be used by a Testator or Testatrix (i.e. a person who has already made a Will) to make minor changes to their Last Will and Testament (i.e. Will) without needing to re-write the whole thing. This Ontario Codicil also comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. Best of all, if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!
This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.