Many people are broadly aware of the difference between a “Will” and a “Codicil”, understanding that while a Will is typically self-contained and acts in isolation, a Codicil works in collaboration with the previous Will to alter the terms and be read together. Although these documents are often conveniently labelled as a “Last Will and Testament” or “Codicil” so there is no confusion about what the document was intended to be, this is not always the case, with questions sometimes emerging over whether the document was intended to be a “Will” or “Codicil”. As such a differentiation can have a significant impact on how the estate is to be administered, potentially determining for example whether the previous testamentary document has been revoked or whether any bequests in the prior document survive, the determination of whether a document was intended to act as Will or Codicil can be an important task.
The Succession Law Reform Act itself does not define the difference between a Will or a Codicil, with the definition of “Will” under the act including both a Last Will and Testament as well as a Codicil. The legal differentiation between a “codicil” and a “will” was described in Matzelle Estate v. Father Bernard Prince Society of the Precious Blood (1996), 11 E.T.R. (2d) 78, as:
“A codicil has been defined as a testamentary document which supplements, explains, modifies or subtracts from a will bearing an earlier date. It is normally used only for minor amendments to the original document: see A.H. Oosterhoff, Wills and Succession, 3d ed. (Toronto: Carswell, 1990), at page 15.”
Cases such as Re Farrell (1919), 26 O.W.R. 220, and Brodie v. Chipman (1918), 57 S.C.R. 321, stand for the position that a codicil should be construed so as to interfere with a Will as little as possible, and that a codicil that is indefinite or ambiguous in its dispositions should not be treated as revoking dispositions carefully made in a Will.
Edwards v. Findlay (1894), 25 O.R. 489, further stands for the position that a revocation by codicil shall not be allowed to interfere with the provisions of a Will to any greater extent than the terms of the codicil require, while Gilbbery v. Montreal Trust Co. (1963), 40 D.L.R. (2d) 486, states that a codicil omitting to confirm a previous will or codicil does not imply an intent to revoke the previous document.
From the jurisprudence it appears that when there is any question about whether a subsequent testamentary document was a “Will” or “Codicil” the court will generally err on the side of concluding the document is a codicil so as not to revoke carefully made testamentary decisions in a previous document. This is not always the case however, as each situation will need to be determined on a case by case basis with an eye to the wording of the documents and what can potentially be ascertained about the testator’s intentions.
Thank you for reading.