Can I leave money to my niece through a codicil?

Q: I’m interested in making a small change to my will. I’d like to leave a $10,000 gift to a favourite niece of mine. The rest of my estate is split between my three adult children. Can I do this through a codicil? Or should I completely redo the will?

—Angela in Toronto

A: Wills do need to be revised because of changes in the law. Making small changes to existing wills used to be done by a codicil. People assume codicils can be done quickly and cheaply but there are some dangers.

First, realize that a codicil is a legal document that amends your will. You don’t want to try to do this by yourself. Codicils must comply with all legal signing formalities, like a will.

Frequently, codicils change executors, guardians or add cash gifts. However, you must still rely on and find your original will. If you cannot locate it, you need to make a new will—not a codicil.

To add a codicil, you should visit the lawyer who prepared your original will. That lawyer would be the best person to advise you. Your existing lawyer can tell you if the will is out of date.

Now, if you have an old will, it may be better for you to make a new will rather than a codicil. That’s because old wills may be outdated and have these problems:

the original witnesses to the will are not available;
they do not save taxes;
new laws make the will out of date;
confusing old terms and language;
your needs, assets or relationships have changed;
your beneficiaries have changed; and
you have moved into a new province.

If you need a new lawyer to prepare the codicil, then you probably need a new will. Most lawyers won’t take a chance that your original will is valid or suitable. If your will is not valid, then it is likely your codicil is not either.

This is why some lawyers refuse to prepare codicils to wills they did not prepare. It is a practice that is safer for clients and I have adopted it as well in my office.

And finally, you did not mention if your niece was a minor. I find it difficult justifying spending money for a new will for your niece’s gift. You could consider other non-will alternatives. Perhaps you can buy Canada Savings Bonds in her name. You should look for your original will. You may be surprised that you can’t find it. Then you would need a new will, not a codicil.

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Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law

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