Republication of a valid will makes the will operate as if it were created on the date of republication. Generally speaking, a codicil republishes the will to which it refers, unless a contrary intention is expressed in the codicil. For example, a codicil, duly executed on September 14, 2016, to an earlier will would republish the will, making it operate as if the will were executed on September 14, 2016. This is true whether or not the codicil is annexed to the will. A testamentary document that is not called a codicil and that does not make reference to a specific earlier will does not republish the will.
The Wills Act, 1837 provided that a republished will is deemed to have been made at the time of the republication. The Succession Law Reform Act (SLRA) does not make any reference to republication, to either confirm or abolish the doctrine. Thus, the SLRA has a neutral effect on the doctrine, and it continues to operate
in Ontario law.
The concept of republication was more important before the Wills Act, 1837 was enacted, when it was a rule of law that real property acquired after the date of the execution of a will could not be devised by that will. The Wills Act, 1837 changed the law so that a will speaks from the date of death in respect to the property of the testator.
Republication can still be useful in estate planning. For example, republication can be used to incorporate by reference a document or memorandum into the will that was not in existence when the will was first executed (Lady Truro, Re (1866), [1865-69] LR 1 P &D 201). Republication might also be significant in construing the meaning of certain provisions of a will, particularly descriptions.
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Wills often deal with personal property by referring to a memorandum that sets out how the personal property is to be distributed. Usually, the memorandum is not executed in accordance with the requirements of the Succession Law Reform Act, or similar legislation. How effective is such a memo?
A memorandum, even if not properly executed, will be “incorporated by reference” and found to part of a valid will if:
a. the memorandum is referred to in a duly executed testamentary instrument;
b. the memorandum is in existence at the time of the execution of the testamentary instrument; and
c. the memorandum is “ascertainable” – that is, there is specific reference to a specific document. The reference to the document must make it identifiable: see Black Estate v. Black, 2006 CarswellOnt 9030, 32 E.T.R. (3d) 282 at para. 19.
Reference in the will to a document that is to be created in the future can be fatal to the application of incorporation by reference. However, reference to a memorandum that does not exist at the time the will was executed, but exists at a time when a codicil confirming the will is executed may result in a valid incorporation by reference: See Re Lady Truro (1866), L.R. 1 P.& D. 201, referred to in Hull, Probate Practice, 4th ed, p. 83.
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Paul Trudelle – Click here for more information on Paul Trudelle.