For some people, the idea of preparing a Will makes them uncomfortable - it means facing the inevitable head-on. However, having a Will is the only way to ensure your assets are distributed according to your wishes. With this article, I will answer some frequently asked questions about Wills.
Testator: the individual making the Will.
Estate: all of the Testator’s assets, including real property (land) and personal property.
Executor: the individual charged with administering the Estate after the Testator’s death (this involves gathering assets, identifying liabilities, retaining professionals, filing for Probate, etc.).
Trustee: the individual charged with overseeing the Estate trust(s) after the Testator’s death.
Beneficiary: an individual benefiting from the Testator’s Estate.
Specific Bequest: a specific gift to an intended Beneficiary (for example, “I give my 2020 Red Mustang to Cousin John”).
Residual Bequest: a non-specific gift to an intended Beneficiary (for example, “That the Residue of my Estate be divided equally between my Children”).
Residue of the Estate: what remains in the Estate after Debts and Specific Bequests are paid out.
FREQUENTLY ASKED QUETIONS
Question 1: Do I need a lawyer to draft a Will?
Answer: No, you do not need a lawyer to draft your Will. There are a variety of websites that offer Will templates, and you can draft your own Will on a computer or by hand (called a Holograph Will). However, there are many advantages to using a lawyer, including but not limited to: (1) knowledge of the provincial legislation - many template sites provide general templates not catered to specific provincial legislation; (2) legal knowledge to ensure the Will is signed and witnessed correctly; (3) legal knowledge to ensure the wording of the Will actually accomplishes what you want; (4) advice on alternative methods of distributing assets; (5) consultation on tax issues (in conjunction with your accountant); and (6) advice on setting up a trust for minor or special needs children.
Question 2: I have a Will, when should I review or change it?
Answer: Generally, a well drafted Will does not need to be changed every time your circumstances change. However, a Will should be reviewed every couple of years or when there is a major change in your circumstance. Major changes include: marriage (see Question 3), divorce (see Question 4), and moving to a different province or country. Additionally, where a Specific Bequest is made (i.e. the 2020 Red Mustang to Cousin John) and that item is later sold, you may want to review your Will so to provide for Cousin John in another way.
Question 3: What happens if I make a Will and subsequently get married?
Answer: The general rule is that a Will is revoked by the marriage of the Testator. There are a limited number of exceptions, including when there is a declaration in the Will that states it is made in contemplation of a specific marriage. You should therefore review and re-draft your Will after you get married.
Question 4: What happens if I make a Will and subsequently get divorced?
Answer: Any appointments (Executor or Trustee) of, or bequests to, the former spouse are revoked at the time of divorce. The rest of the Will remains intact. For example, if the former spouse is the named Executor, that appointment is revoked and the substitute Executor takes his or her place. In the case of a bequest, the bequest is revoked and instead forms part of the Residue of the Estate. Although the Will remains enforceable, we strongly recommend reviewing and re-drafting your will if you get a divorce.
Questions 5: What happens if I make a Will and subsequently terminate my Common-Law Relationship?
Answer: The answer depends on the genesis of the Common-Law Relationship. (1) If the relationship was registered under The Vital Statistics Act, then the termination must also be registered. When the termination is registered, any appointment of, or bequest to, the Common-Law Partner is revoked and the rest of the Will remains in effect. (2) If the relationship is the result of living together (3 years in a conjugal relationship or 1 year in a conjugal relationship and the couple are parents of a child), termination occurs when the parties have lived separate and apart for a period of 3 years. When the 3-year period has lapsed, any appointment of, or bequest to, the Common-Law Partner is revoked and the rest of the Will remains in effect. Again, we strongly recommend reviewing your Will when the relationship terminates.
Question 6: Who takes care of my minor children if I die and don’t have a spouse (or my spouse has predeceased me)?
Answer: Ultimately, the Court will decide what is in the best interest of the children. If you appoint a Guardian in your Will, the Court will view this as persuasive but not determinative.
Question 7: What happens if a Beneficiary predeceases the Testator?
Answer: The answer depends on the Testator’s relationship to the Beneficiary. (1) If the Beneficiary is a child or sibling of the Testator AND the Beneficiary leaves children of their own living at the time of the Testator’s death, the bequest is divided equally between the children of the original Beneficiary. (2) If the Beneficiary is not a child or sibling of the Testator OR if the Beneficiary is a child or sibling of the Testator but does not leave children of their own living at the time of the Testator’s death, the bequest lapses and forms part of the Residue of the Estate.
Question 8: Can I include funeral and burial or cremation directions in my Will?
Answer: Although funeral and burial or cremation directions can be inserted into your Will, it is not the best place. The first reason is that sometimes the funeral takes place before the Will is read. Further, those types of instructions are not binding; the Executor has the ultimate authority with respect to disposal of the remains.
Question 9: What happens if I die without a Will?
Answer: Without a Will, you have no control of how your Estate is distributed; the distribution will follow The Intestate Succession Act. Under that Act, how your Estate is divided depends on the construction of your family. For example:
Scenario A: If you die and leave a surviving spouse or common-law partner (“CLP”) but no children then your spouse or CLP receives the entire estate (see S. 2(1)).
Scenario B: If you die and leave a surviving spouse or CLP and children that are also the children of your spouse or CLP, you spouse receives the entire estate (see S. 2.2))
Scenario C: If you die and leave a surviving spouse or CLP but all children are not also the children of your spouse or CLP (i.e. a blended family), your spouse or CLP receives ($50,000 or ½ of the Estate (which ever is greater) and ½ of any remainder of the Estate. After that calculation, the remainder of the Estate is distributed to the children (see S. 4(2)).
Note: This does not represent a complete list of all possible scenarios, and we encourage you to consult a lawyer to determine your specific circumstance.
At Levi Abram Law we offer a free Will consultation. Simply schedule an appointment and bring your Will in. We'll review it, ask a few questions about your circumstances, and provide free advice on what your Will says and how your assets would be disbursed. Based on our advice, you can determine if the Will accomplishes your goals and, if not, how it should be updated.
Disclaimer: The content above is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor client relationship. The views expressed are solely the authors’ and should not be attributed to any other party. The author makes no guarantees regarding the accuracy or adequacy of the information contained herein. Proper legal advice is always dependant on specific facts and circumstances. If you are seeking advice on specific matters, please contact Levi A. Taylor at firstname.lastname@example.org or 1 (204) 292-8335.