The precise form of Will used will depend on the goals of the testator and applicable law. In some cases, more than one Will may be prepared for an individual testator.
Since Wills are supposed to reflect the full extent of the testator’s wishes and provide clear instructions to the estate trustee regarding how the administration is to be carried out, it is preferrable to include a comprehensive set of administrative provisions (sometimes called “boilerplate”). This can significantly reduce the chances of interpretation issues and legal challenges. There is no “one size fits all” solution and Wills must be customized to suit individual client needs including the administrative provisions.
Multiple Wills – Testator’s can make more than one valid Will at a particular time. There are various reasons for doing this one of which is probate planning. Another reason is simply ease of administration where the testator has property that is located in multiple jurisdictions either within Canada or partly in Canada and outside.
Great care needs to be taken to properly coodinate multiple Wills to avoid unintended gaps or overlap. Generally, you cannot add a second Will where one already exists without revising the first Will in whole or part. There can be inconsistencies if the first Will is not updated.
Mutual Wills – This refers to the concept of 2 or more people contracting to prepare Wills in conjunction with each that cannot be revoked after the first testator dies. In a broader sense, since not all property of a testator is necessarily distributed through the testator’s Will, a more accurate term might be mutual estate planning.
There is no prescribed form of contract that is used and technically it may not be necessary to have a written contract. However, it is a good idea to have a written contract in addtion to the Wills clearly setting out the expectations of the parties. Also, it may be necessary for the contract to comply with certain family law requirements of the particular jurisdiction in order to be valid and have maximum effect. Also, not all jurisdictions may permit the use of mutual Wills.
Codicils – These are testamentary documents that act as addendums to existing Wills. They can serve to change estate trustee appointments, add or delete gifts, or adjust administrative provisions. There are formalities for executing codicils that are generally the same as for Wills. It is recommended that they only be used for minor changes since they function with the original Will leaving a trail in terms of the old and new provisions.
Where gifts are being deleted, codicils may not be appropriate. Also, the prevalence of computers makes revising Wills much easier and may be the preferred route in most cases rather than using codicils. This is particularly true where a new lawyer is being used as they are required to collect and verify all necessary information related to the Will planning process, not just the requested change. They also have a professional obligation to ensure all of the testator’s intentions will be cared out which may prevent them for adopting the previous Will format.