May 25, 2012


Codicil of Christopher Columbus (No I cannot read it)

It is common for a person who writes a will to later change their mind as to its contents. As time goes by, a person's attitude and circumstance changes invariably and reflectively they might wish to change their will. For example, the testator might want to amend beneficiary designations, the choice of executor or specific bequests. The legal term used for this testamentary instrument is a "codicil." 

A codicil can supplement, amend, qualify or republish a prior testamentary document. Estate of Benson (1944) 62 CA2d 866. The codicil and will coalesce in probate whereby both are read as one document. In a sense, a will and codicil are like chapters in a book. Each chapter needs to be read in order to fully understand the book, and the same holds true for a will and codicil.

What is particularly important when writing a codicil is to ensure a clear intention. The following case illustrates the problems an inarticulate intention, i.e. ambiguities, can create.

Estate of Lund (1973) 34 CA3d 668

Grace Lund's will devised $10,000 to Margarita Varga. Then in a codicil to her will, Ms. Lund stated that Ms. Varga was to receive $20,000 and a mink coat. Naturally, Ms. Varga argued that the codicil supplemented the will such that she would receive $30,000. Conversely, the executor argued that the codicil was substitutional whereby Ms. Varga should only receive $20,000. The Court held that the codicil was not substitutional because it found no evidence of intent to substitute the $20,000 for the $10,000. Rather it found that the codicil supplemented the will and affirmed the $30,000 award to Ms. Varga. This case illustrates the danger of haphazardly executing a codicil. The $10,000 difference in 1973 is today worth anywhere 4x and 10x times that amount. Be clear!