That is mine per the memorandum/codicil.

I am sure a lot of wills have a memorandum attached that is a handwritten list of items and a name beside it. Showing what the deceased wanted to give to certain people. It is a common practice, however is it legally binding? The answer, it depends on how the list is incorporated into the will.

In Canada, an informal letter or memorandum kept with your personal papers, but not formally part of the will, is considered an expression of your wishes and is not legally enforceable by your executor. The executor may choose to honour the wishes if all beneficiaries agree, but they are under no legal obligation to do so. A formal list can be legally binding if properly incorporated. A separate document can be made legally binding if it is formally referenced in the will and meets strict legal rules for incorporation by reference. These rules generally requirethat: the will specifically refers to the document as an existing document, the document was in existence at the time the will was executed (signed and witnessed), the document is described clearly enough to be readily identified and any subsequent changes to a binding list would require a new will or codicil (a formal amendment to a will) to be valid, which must also be formally executed and witnessed.

A gift list is generally called a memorandum of wishes and is not a codicil. A codicil is legally binding document. My mom had a gift list that was handwritten and was kept with her copy of the will at the house. She made changes to it (scratching out names and putting new ones or adding another item). Based upon discussion with my Mom’s will and estate lawyer, we had the gift list included with the will when we applied for probate. I did not discuss this with the other beneficiaries and perhaps I should have. Upon reflection afterwards, the list was not fair but it was Mom’s wishes.

The process was completed with recipients outside the residual beneficiaries had to sign they received the items as per the list. It was not really complicated and went smoothly. It was surprising as we were dealing with a sibling that was basically disinherited. Her name was one of the ones scratched out and the item reassigned. We all agreed to still gift the item with her name originally. We did this, even though it wasn’t exactly as Mom wanted but all the residual beneficiaries felt that we wanted to as our sister knew about the list in its original form.

Take away? Most times the list is not legally binding but I believe most executors will try to honor it the best they can. Open communication with any residual beneficiaries is crucial to move through any problems that occur.

~Written by Tracey Lindsay - Sine