Avoiding Estate Planning Mistakes: A Guide to Properly Updating Your Will

Your will serves as a crucial testament to your final wishes, and as life evolves with shifting circumstances and family dynamics, it's important to ensure your will remains up-to-date. However, the process of updating a will is not to be taken lightly. Incorrectly executed updates can jeopardize your entire estate plan. In this article, we will explore three common pitfalls to avoid when updating your will, illustrating the significance of seeking professional legal assistance, such as that provided by Marwah Law.

1. Verbal Declarations Without Legal Documentation

One of the most precarious ways to update your will is through verbal declarations without proper legal documentation. This scenario often arises when individuals inform family members or beneficiaries of their intent to modify their will, but fail to follow through with formal amendments. Such discrepancies can lead to confusion, misunderstandings, and even conflicts among beneficiaries.

For instance, imagine a parent promising one child ownership of a cherished cottage, while telling another child a completely different story. In another scenario, a parent may verbally assure children that their estate will be equally distributed, only to leave ambiguities and disagreements after their passing. Verbal agreements, without the backing of legally amended documents, lack enforceability and can result in disappointed beneficiaries.

2. Notes on the Will: A Risky Approach

Jotting down notes or comments directly on your will, or a copy of it, is another common but risky approach to making updates. This practice might seem like an easy fix, such as crossing out a beneficiary's name or adding a new one. However, under Ontario law, these handwritten amendments only hold validity if they are accompanied by the testator's signature and the signatures of two witnesses. Initials or just the testator's signature won't suffice.

Additionally, writing notes on your will, especially while still contemplating changes, can create confusion. Such notes may inadvertently be interpreted as official revisions, leading to unintended consequences. When contemplating amendments, it's always advisable to avoid the temptation of making changes directly to your will.

3. Crafting Your Own Amendment: The Codicil Quandary

Some individuals opt to prepare their own amendments on a separate piece of paper, known as a codicil, to avoid altering the original will directly. A codicil, like a will, must adhere to specific legal criteria to be considered valid. While Ontario law permits the creation of a holographic codicil, it is not the recommended route.

A holographic codicil must be entirely handwritten by the testator, signed at the end by the testator, and does not require witness signatures. However, precise wording is essential. Improper phrasing in a codicil could inadvertently revoke the entire will. This is why it's crucial to seek professional legal guidance to ensure any codicil is drafted accurately.

The Importance of Legal Assistance

Since January 1, 2022, a substantial compliance rule has been in effect, allowing certain documents to be treated as wills if they substantially comply with Ontario's execution requirements. While this provides some flexibility, it underscores the importance of proper documentation. To ensure your updated wishes are accurately recorded and potential conflicts are averted, it's recommended to either execute a formal codicil or create an entirely new valid will.

Although changing your mind is natural, modifying your will without professional legal assistance is not advisable. Marwah Law specializes in estate planning, ensuring your intentions are legally and comprehensively reflected in your will. Don't risk the confusion and disputes that can arise from poorly executed updates. Reach out to Marwah Law today to safeguard your estate and your legacy. Remember, a properly updated will provides peace of mind for you and your loved ones.