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Amending wills can be tricky business

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J. Paul Getty was born in 1892 into a wealthy oil family. He worked in the family business and, eventually, became fantastically wealthy in his own right. He was a playboy, and fell out of his father's favour as a result. He had to earn his fortune the hard way, by his own efforts.

It went well for him. He had a touch for business, and by the time he passed away, he was one of the wealthiest people in the world. He taught himself to speak Arabic and purchased oil rights to tracts of land in Saudi Arabia and Kuwait before oil was discovered there. No small trick. His most widely quoted remark? "The meek will inherit the earth, but not the mineral rights."

He first wrote out his will on Sept. 22, 1958 and proceeded to amend it 21 times during the 18 years that followed. Heirs were added and removed. Shares jumped from small remembrances to millions of dollars and back down again. Each change was made by way of a document called a codicil.

A codicil is a short document that amends an earlier will. It is usually one or two pages long. It is commonly used to make small changes to the will, such as replacing executors or changing a cash gift from one amount to another.

Codicils were very popular in the 1800s. All legal documents had to be handwritten by legal clerks, usually twice -- once in draft and the other to be signed. There were no photocopiers. There was a lot of motivation to penning a simple codicil, rather than rewriting the whole will. In the 1900s, wills might have been typed on a manual machine with carbon paper. Tools, now considered primitive, such as corrector tape or White-out could not be used. Now, with computers and word-processing software, the temptation is to amend the whole will and hit "print." Is that always the right decision?

As soon as you make one change to a will, you often are forced to make other changes before you reprint it in its entirety. Names have to be freshened. Technical language has to be updated. Stale clauses appointing guardians for children, now adult, have to be deleted. The job can get big, quickly. It is often easier to make the simple change by a one-page codicil.

If the will-maker is old and sick, they may have the mental capacity to make a simple codicil changing the executor, but lack the mental capacity to make a new will. Also, if they cut someone out, the will and codicil both go to probate. That means the person who was cut out has the opportunity to object. They see the old will and the inheritance they would have received. They also see the codicil and the change made to disinherit them. That gives them the opportunity to challenge things. Believe it or not, that is a good thing if the will-maker is suffering from diminished capacity.

Codicils can be a problem if the will-maker gets carried away. It becomes very difficult to figure out who gets what if you have to wade through a handful of codicils, each amending the other as well as changing the original will.

Why did J. Paul Getty use so many codicils and refuse any suggestion that the will be redrafted from scratch? The exact answer is not known, but it is believed he wanted his friends and family to know exactly when they had fallen out of favour with him.

Where did his fortune go? He had been married five times. His will, as amended by the 21 codicils, was stingy with his ex-wives, but generous to a collection of girlfriends he had never married.

The story of J. Paul Getty and the Getty fortune is a true one.

 

John E. S. Poyser is a lawyer with Tradition Law LLP. Contact him at 204-947-6802 or jpoyser@traditionlaw.ca, or visit www.traditionlaw.ca.

Republished from the Winnipeg Free Press print edition March 20, 2013 B5

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