Codicil or New Will?

If you’re considering changes, fixes, or updates to your existing Will, you may have encountered the term ‘Codicil’. In Alberta, a Codicil changes or amends an existing Will, allowing you to make updates without incurring the expense of a new Will. A Codicil is a great option for Will updates in certain circumstances, however, it’s not always the ideal option. If you’re considering a Codicil, there are some important things you should consider.

What is a Codicil, Anyways?

The use of the term ‘Codicil’ varies significantly between jurisdictions, which can create confusion. In some jurisdictions, a Codicil is an alternative to a Will—a simpler document that stands in place of a Will. In other jurisdictions, ‘Will’ and ‘Codicil’ are two different names for the same document.

In Alberta, however, a Codicil is a document that amends an existing Will. If you ask your local Alberta Wills & Estates lawyer for a Codicil, you’ll likely receive a document, attached to your existing Will, that’s 1-2 pages long, replaces certain language in your existing Will, and meets the formal requirements of a valid Will in Alberta.

A Brief History Lesson…

While Canada has its own distinct legal system, outside of Quebec, our laws and judicial processes are based on the English Common Law system. The English Common Law, while unique, can trace many of its roots back to both Norman Law and Roman Law.

Codicils find their origins in Roman Law. Early forms of Codicils used in Roman Law were essentially Wills-lite. They were valid legal documents but were considered more flexible and less formal than Wills. Additionally, beneficiaries’ rights were more limited under early Roman Codicils than under early Roman Wills.

While the history of Codicils is certainly fascinating, most legal scholars recognize that Roman Inheritance Law was excessively complicated. If you’re wondering why the history of Codicils is important to this article, it confirms the concept that Wills and Codicils have been two distinct but similar documents since ancient times. Roman legal history also shows us that Codicils weren’t quite as effective as Wills at ensuring fulfillment of a Will-maker’s intentions—a theme that’s still relevant to modern codicils in Alberta.

Why a Codicil?

Let’s start with the advantages of a Codicil. The first and most obvious advantage of a Codicil is cost-effectiveness. In many cases, a Codicil is only 1/3rd of the cost of a new Will. In addition to the significant cost savings, Codicils are also convenient. Codicils are typically brief, meaning you’ll spend less time reviewing the document, and less time at the lawyer’s office, than you would if you were having a new Will prepared. The third advantage of a Codicil is continuity—you may simply like your existing Will. While that may sound like silly justification, perhaps your Will was drafted several years ago by a now-retired lawyer whom you trusted. For that reason, you may prefer to attach a Codicil to your existing Will, rather than have a new Will drafted.

Are there Disadvantages of Codicils?

Codicils aren’t as cost-effective as they may seem. If West Legal drafted your original Will, in most cases we’ll update your existing Will at our Codicil price, as we retain electronic draft copies of your Will on our secure server.

Codicils are more easily lost or stolen than Wills. While a Codicil is usually attached to a Will, nothing in the pre-existing Will indicates the existence of a Codicil. Someone with ill intent can easily remove a Codicil from a Will if they prefer the Will’s pre-Codicil language. A Codicil may also become detached from the original Will over time and lost during a move or reorganization.

A Codicil may increase the likelihood of legal claims against an Estate. While this isn’t a pronounced risk, a Codicil is a second document, that is signed and executed separately from, and often several years after, the original Will. A challenging party may assert that you lost capacity in the time period between the execution of your Will and your Codicil, or they may argue that undue influence prompted you to sign a Codicil.

Codicils increase the potential for errors. While a prudent Wills & Estates lawyer shouldn’t make any mistakes in your Codicil, there’s less room for error when one lawyer drafts your Will from start to finish.

Codicils make things more complicated. Having one valid, up-to-date Will, without addendums, is tidy, simple, and clean. An older Will with a new Codicil attached isn’t the simplest option and may create confusion for your Executor.

Codicils aren’t the best bang for your buck. While a Codicil may be cheaper than a new Will, it doesn’t offer the same value for your money as a Will Package does. At West Legal, our Will Packages include a one-hour Estate Planning consultation with one of our lawyers, a Will that your lawyer will review with you in detail, a Personal Directive, and an Enduring Power of Attorney.

Is a Codicil the Right Option for You?

While the pitfalls of a Codicil often outweigh the advantages, a Codicil is still the right option in limited circumstances. For example, you may have an otherwise valid and up-to-date Will that requires only one or two small changes. If that Will was drafted by another lawyer, it may best to proceed with a Codicil. In other circumstances, a new Will is simply the better choice.

If you’re unsure whether a Codicil is a right fit for you, the Wills & Estates lawyers at West Legal can help you make the right decision. Reach out to us today to book your free-of-charge consultation!