People change their mind all of the time. When someone changes their mind about the terms of their Will however, things can become more complicated. Going to a lawyer to formally make a change to the Will may seem daunting. If the change to the Will is relatively minor, an individual may be tempted to forgo meeting with a lawyer to draw up a new Will or Codicil, and simply make the change to the Will themselves by crossing out or inserting new language by hand on the face of the old Will. But would such handwritten changes be valid?
Although the advice to any individual thinking of changing their Will would always be to speak with a lawyer about the matter, people do not always adhere to such advice. If someone has made handwritten changes to their Will after the document was originally signed, such changes can under certain circumstances alter the terms of the Will.
Section 18(1) of the Succession Law Reform Act (the “SLRA“) provides that unless any alteration to a Will is made in accordance with the requirements of section 18(2) of the SLRA, such alterations have no effect upon the provisions of the Will itself unless such an alteration has had the effect that you can no longer read the original wording of the Will. Section 18(2) of the SLRA further provides:
“An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.”
As a result of section 18(1) and 18(2) of the SLRA, any handwritten change to a Will does not validly alter the terms of the Will unless the testator and two witnesses sign in the margins of the Will near the alteration (subject to certain exceptions listed). If the handwritten change is not accompanied by such signatures it is not a valid alteration and has no impact upon the original terms of the Will, unless the handwritten change has had the effect of “obliterating” the original language of the Will by making it no longer readable.
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This past Sunday was Remembrance Day: a day when we pause to remember those who made tremendous sacrifices for our freedom.
Of particular note are the sacrifices made by Corporal Leo Clarke, Sergeant-Major Frederick William Hall and Lieutenant Robert Shankland. All three men fought and gave their lives during World War I. All three men received the Victoria Cross for acts of bravery. All three men lived on one block of Pine Street in Winnipeg, Manitoba.
On September 9, 1916, Corporal Clarke was involved in a battle that wiped out his entire section. 20 enemy soldiers counter-attacked, and Clarke defended the position. He single-handedly killed 19 enemy soldiers, and captured one. Corporal Clarke was later seriously injured in battle on October 11, 1916, and died on October 19,1916 at the age of 23.
Sergeant-Major Frederick William Hall died in battle on April 24, 1915 at the age of 30. During a battle in Belgium, Hall left his position of shelter and ventured onto the battle field to recover wounded soldiers. He brought two wounded soldiers back to safety, but lost his life will trying to save a third.
Lieutenant Robert Shankland fought in both World War I and II. He was awarded the Victoria Cross for his acts of bravery while a Sergeant in World War I. On October 26, 1917, Shankland led a platoon and captured a position at Passchendaele, Belgium. The position was exposed and under heavy attack, and was at risk of being lost. Shankland turned over command to another officer, and fended his way through mud and enemy shelling to return to battalion headquarters, where he was able to report on the situation, obtain reinforcements, and plan a counterattack. He returned to the front to lead the counterattack. Shankland rejoined the military for World War II. Lieutenant Shankland died in 1968,
What united the three men, apart from their extraordinary valour, was the fact that they all lived, and one point, on Pine Street, Winnipeg. In 1925, Pine Street was renamed Valour Road. in honour of these wonderful gentlemen.
Shankland’s medal was purchased by the Canadian War Museum in 2009 for $240,000 from, it is believed, Shankland’s family. Shankland’s Victoria Cross, along with those of Hall and Clarke are now displayed at the Canadian War Museum in Ottawa.
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Paul Trudelle – Click here for more information on Paul Trudelle.
This week on Hull on Estates, Diane and Craig discuss what to consider when dealing with experts and expert reports in cross examination.