When your Will is a won't! The do's and don'ts of amending a Last Will and Testament

Adrian Fitzpatrick died on October 17, 2012.  Four months later his wife Mary Ann died just short of her 83rd birthday. The Fitzpatrick's had been married more than six decades and were survived by 10 children and 54 grand and great-grandchildren. It was said that Mary Ann "...no longer had the will to live without Dad and died broken-hearted..."

Shortly before her death, Mary Ann visited her lawyer and had completed her Last Will and Testament. Sometime after she had signed the Will, Mary Ann tried to change her Will by herself. In particular, she attempted to scratch out words and replace them with others.

In addition to those attempted changes to her Will, Mary Ann also made notes and even drew a sketch that depicted the property referred to in her Will. The note that referred to her sketch said,

"Tracey will own her own bedroom and the room next to it and build on a bathroom and a porch and Jerry and his children will own the rest of the house. Signed Mary Ann Fitzpatrick".

There was no one present when Mary Ann made the changes and notations to her Will, and so the changes were not witnessed in writing.

The family was puzzled by these changes. Were the new changes valid? Did they replace the clauses in the original Will? To answer these questions the Executor of the Will decided to take the matter before a judge and get his opinion.

So, if you were the judge what would you decide?

Before you decide...consider this: a Will is supposed to represent how the deceased person wanted their estate dealt with. In this case when you look at Mary Ann's Will, you can clearly understand what she was after by reading what was added and what was scratched out. Don't you think those wishes should be honoured?

Here's what the Judge said:

Mary Ann Fitzpatrick made her last will and testament about seven months before she died. She tried to change it after she signed her will by writing on it and scratching over words that appeared in the original document. None of the changes that Ms Fitzpatrick made to her will completely obscured the words in the original document; and she did not execute the changes in the same manner as the original will. The executor of the will asked the court if the changes were effective.

The court rejected the changes because they did not comply with Section 7 of the Wills Act, in Newfoundland (the equivalent to Section 18 of the Succession Law Reform Act in Ontario), and ordered that the Will be administered in accordance with the terms originally set out before the additions and deletions were made.

So there you have it.  In Ontario, the Succession Law Reform Act requires that any changes to a Will must be witnessed with signatures of the witnesses placed opposite the changes or near the alterations.  In this case, those legal requirements were not carried out by Mary Ann and her attempted changes failed.

Lesson to Be Learned:

In a world of online legal documents and preprinted do-it-yourself forms, it is still risky to "do-it-yourself".  It is true that to "do-it-yourself" is less expensive than meeting with a lawyer.  But be warned, the old adage "you get what you pay for" sometimes applies with painful consequences.

At The Ross Firm, we have lawyers whose practice focus is Wills & Powers of Attorney, and matters involving Estates.

Give us a call.

Talk to us.

We can help.

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