This blog post was written by: Holly Van Schouwen, Estate and Trust Consultant, Scotiatrust Victoria

It’s a sad time, A parent has passed on and the adult children are reviewing the Will.  One or more of the children are named to provide oversight in distribution of personal effects (articles).  This can become a contentious issue if there are strained relations within the family.

Where there is no specific language around distribution of these assets in the Will, a question can often arise around what the personal effects are and who decides who gets what.  This can present a potential problem for an executor in wanting to be fair and provide equally for beneficiaries in keeping with the wishes outlined for residue distribution within the Will.

Those who have been named to provide oversight to distributing personal effects may have varying opinions and at times, be of the mind that this language gives them the authority to make the decisions.  Be it heirlooms like family jewelry, collectibles, a vehicle or Uncle John’s coin collection, without the testator’s specific naming for these items as bequests. Acting on vague language to ensure the wishes of the deceased are carried out can cost time and relationships, not to mention potential litigation if there are disputes over the articles.  A BC case recently showcased why clear language is so important to minimize potential challenges to a Will.

While conversations around the estate and the assets are the prudent primary step to have when preparing a Will, a conversation held with one person does not supersede the Will.  “My father wanted Jack to have the clock, and I get the fishing rods, that’s what he told me”, can be an issue especially if Jack see’s things differently.

In my experience as a Trust Officer, I have listened to beneficiaries insist that their conversation overrides others, and further, if they are named to be consulted for distribution, that their word and understanding is the final determination.  At times, these individuals have even determined that people not named in the Will are entitled to personal items.  Executors cannot distribute items to people who are not beneficiaries. This article is helpful in understanding what can take place, Executors cannot distribute items to just anyone.

Often seen with the above, is also the misunderstanding that distribution of personal articles, regardless of monetary value, means that these items are not counted towards the estate valuation of all personal assets.  Beneficiaries may assume that they just get the rods, or the rings, or the pretty things, right away, without an appraisal being done.  There can be little concern for equal distribution in terms of monetary value, and conflict between beneficiaries, when an executor incorrectly determines that the distribution of these assets, and their valuation, counts as part of the residual distribution and ends up reducing the payouts to each child or family member after factoring in these items.

All assets of value must be counted for the probate process within Canadian Law, while each province has varying law(s) around the process, taxes etc. https://www.canada.ca/en/services/life-events/death/estates-wills.html

And so, the question around how to minimize disputes around personal articles, who gets what and who gets to say where assets go is best answered by ensuring that after having conversations with family members about these items, these wishes and directions are provided for within the Will.  A skilled estate lawyer will review assets as part of the planning that goes into drawing up a Will and a letter of wishes, if required. If there are numerous mementos and legacy items, a letter of wishes is highly recommended to provide direction and help to minimize any ambiguity. Also asking the “why” if certain family members are to be appointed oversight to personal item distribution is a good estate planning practice.

In the absence of this, a best practice for executors is to meet with the children and family members of the deceased, together, after the initial documentation (photos, appraisals) of the personal articles has been done.  Typically doing this documentation as soon as possible is most advantageous.  Having everyone together helps to ensure clear and honest conversation without conjecture or a “he said she said” situation.  Where these individuals cannot be physically present, sending out the photos and appraisals via email to all for review is also a good option.  This makes everything transparent regarding what specific items are (at times, no one knew that there was a coin collection), their value, and fosters honest conversation around distribution and how that affects each beneficiary’s portion.  There may be disagreements in this process, but it is fair and ensures equity for all in keeping with the even hand rule.

The time of loss of a parent or loved one is fraught with a host of emotions and can bring out the best and the worst in family connections and history.  Be clear in who should get what and why certain individuals or family members are included in the Will to provide oversight.  As an executor, taking the time to gather all the assets and have detailed information about each item goes a long way to helping everyone understand specifics and how this affects them.