Three Versions of a List, and No One Sure Which One Counted

The situation

Vaishali was going through her mother's filing cabinet three weeks after the funeral when she found the second envelope. The first one, handed to her by her mother's original lawyer along with the will itself, contained a single-page memorandum listing who should receive specific items of jewellery, art, and furniture: a ring for one grandchild, a set of dishes for another, a particular painting for a third. The second envelope, tucked behind old tax records, contained a different version of the same list, dated four years later, with several names changed and two new items added. A third version turned up a week after that, in a drawer with old greeting cards, dated more recently still.

Vaishali's mother had built a modest estate over her working life, valued at roughly $700,000 once the Bolton house, a small investment account, and personal belongings were counted. She had three grandchildren through Vaishali and her siblings: Anusha, Luc, and a third grandchild not directly named in the dispute. The memorandum itself was never meant to be complicated. Ontario law allows a will to refer to a separate, unsigned list for dividing personal items, updated informally as a testator's wishes change, without needing to redo the whole will each time. Vaishali's mother had used exactly that flexibility, revisiting the list as her grandchildren married, as relationships shifted, and as she acquired or gave away items over the years.

The problem was that she had never destroyed the earlier versions, and nothing in the will or the memoranda themselves said which version was meant to control if more than one existed. The most recent memorandum, from the third envelope, gave a heirloom ring to Anusha. The first, oldest version gave the same ring to Luc, who had been closest to their grandmother as a teenager, before a falling-out and later reconciliation reshuffled the family's closeness over the years. Vaishali had grown up hearing her mother talk about that ring specifically, and she was fairly sure the most recent version reflected her mother's actual final wishes, but she also knew that being fairly sure was not the same as being able to prove it if Luc disagreed.

The original lawyer who had drafted the will and the first memorandum had retired the year before Vaishali's mother died, and the file had been transferred to another firm that Vaishali found difficult to reach. She brought everything, the will and all three memoranda, to our office instead, uncertain whether we would even be able to pick up a file we had not started.

What made this urgent

The moment that made the problem urgent was smaller than the three envelopes themselves. A cousin, hearing informally that the estate was being settled, asked Vaishali in passing whether she had 'found grandma's list yet,' and mentioned she remembered being told, years earlier, that a particular painting was meant for her. That painting appeared on the oldest memorandum with the cousin's name attached and did not appear at all on the most recent one. Vaishali realized, in that conversation, that family members had been carrying around memories of promises made at different points over a decade, each convinced their own recollection was the current, real plan.

Once we reviewed the file, the legal picture became clearer, though not simpler. A memorandum referenced in a will is generally treated as a non-binding expression of wishes for dividing personal items, distinct from the will's binding dispositive terms, precisely so it can be updated without formal will amendments. That flexibility, which had let Vaishali's mother update her list three times without legal fees each time, was also exactly what created the ambiguity now that she could no longer clarify her own intentions. None of the three memoranda was dated in a way that made its status as the final version legally self-evident on its face, though the most recent one was, by ordinary reasoning, the best evidence of her last actual wishes.

The transferred file added a separate complication. The retiring lawyer's firm had closed the physical office and moved records into storage with a new custodian, and getting confirmation of exactly what the file contained, including whether there were internal notes about which memorandum version the firm considered current, took several weeks of correspondence. Vaishali had assumed, reasonably, that picking up a file mid-stream from another lawyer's practice would either be straightforward or impossible, and was surprised to learn it was neither.

What made the situation genuinely urgent, rather than merely awkward, was the risk that family members would begin acting on their own memory of an earlier version before the estate formally distributed anything, informally taking or claiming items based on a version of the list that was no longer current. Once physical items are handed out informally among family, based on differing recollections, unwinding that later is far harder than sorting out the paperwork first.

What we did

Our first step was requesting the full transferred file from the storage custodian handling the retired lawyer's records, rather than relying only on the documents Vaishali had found at home. That file turned out to include a short handwritten note from the original lawyer, made when the second memorandum was dropped off, confirming it was intended to replace the first. No equivalent note existed for the third version, since it appeared the third update had been made informally, without the drafting lawyer's involvement, sometime after the file had already been marked for transfer.

We then compared all three memoranda item by item, building a table showing exactly which items appeared on which version, with which recipient, so the pattern of changes was visible clearly rather than scattered across three separate pages. That comparison showed the changes were not random; each version reflected a specific, traceable shift, generally toward whichever grandchild had grown closer to their grandmother in that period, which supported treating the most recent version as the genuine final expression of her wishes rather than an aberration.

We reviewed the will's own language referencing the memorandum, confirming it did not specify a particular date or version, which meant the question of which list controlled came down to ordinary evidence of the testator's actual final intention rather than a technical rule in the document itself. We advised Vaishali that, as executor, her role was to distribute according to the most reliable evidence of her mother's actual last wishes, and that the combination of the retiring lawyer's note and the natural progression across the three versions supported the most recent memorandum as that evidence.

Before finalizing anything, we recommended Vaishali communicate directly and in writing with the family members named across all three versions, including the cousin who remembered the painting, explaining plainly that an earlier version existed but had been superseded, rather than letting the estate distribution be the first anyone heard of the change. That conversation, while uncomfortable, meant no one was blindsided by items going to someone other than who they remembered being told.

We drafted a short written record for the estate file, documenting the reasoning for treating the third memorandum as controlling, including the retiring lawyer's note and the comparison table, so the decision would be defensible if any beneficiary questioned it later. Finally, we advised Vaishali to have both of her siblings, the other two children of the deceased, review and sign off on the reasoning before any items were distributed, giving the decision a form of family consensus beyond just the executor's own judgment.

The outcome

Vaishali distributed the personal items according to the most recent memorandum, including the ring to Anusha, roughly two months after the family conversations were completed. No formal dispute arose. The cousin who had asked about the painting was disappointed but accepted the explanation once she understood there had been a genuine, traceable update rather than an arbitrary change, and once she saw the retiring lawyer's note confirming the pattern of updates was intentional.

The estate itself closed within the normal range for a file of its size, without any court involvement over the memorandum question, which is the outcome this kind of careful groundwork is meant to produce: a disagreement that could have escalated into a formal challenge over who was entitled to specific items instead resolved through documentation and a difficult but honest family conversation.

Vaishali told our office afterward that the hardest part had not been the legal analysis but delivering the news to family members who had carried a specific memory for years. Having the written record, and the ability to point to concrete evidence of her mother's own updates, made those conversations possible in a way that her own assurance alone would not have.

Luc, who had lost the ring to Anusha under the most recent version, took the news harder than the cousin had. He remembered his grandmother telling him directly, years earlier, that the ring would be his, and it took a longer conversation, and a look at the comparison table showing exactly when and why the change had been made, before he accepted that the shift reflected his grandmother's own considered choice rather than an oversight. Vaishali later gave him a different piece of jewellery their grandmother had also mentioned fondly, a gesture that was not required by the memorandum but that the siblings agreed helped close the matter on good terms within the family.

What you can learn from this