Today’s blog was written by Jenna Ward, Articling Student, Fasken Martineau DuMoulin LLP.
When clients plan engagement parties, weddings, baby showers or divorce parties (yes, divorce parties are becoming increasingly common) they may not think to invite their estate lawyer. Understandable. However, the unfortunate result may be that such life events impact estate planning in an undesirable way or even revoke estate plans completely.
We recently encountered such a situation with a long-term client. Our client met someone and was married within a short time-span without realizing that the marriage revoked his wills. Although he did not think to alert us of his nuptials, we learned of the wedding second-hand. Fortunately, we were able to make swift arrangements for updated wills and powers of attorney so that our client can rest assured that his wills reflect his true and current intentions.
By way of a reminder, the following life events may impact estate planning:
- Marriage – if no new will is made after a marriage, the new spouse will become entitled to the deceased’s estate under Ontario’s intestacy laws. The exception is where a person who is about to be married makes a will in contemplation of marriage to their future spouse prior to the marriage.
- Separation: generally, being separated, and not legally divorced, has no impact on a separated spouse’s entitlements under a will nor a beneficiary designation, such as a life insurance policy or RRSP. If the separated couple has a separation agreement in place, the terms of such agreement should be reviewed prior to changing beneficiary designations. Furthermore, separation does not revoke prior appointments of former spouses as attorneys for personal care or property.
- Divorce: the law does not presume that a will was revoked by reason of divorce. However, getting divorced will revoke any gift in a will left to the former spouse. The will is construed as though the former spouse pre-deceased the testator, the effect of which is that the former spouse will not be appointed as the executor and trustee, even if named in the will. In contrast, divorce does not have the effect of revoking prior appointments of attorneys for personal care or property. As with separation, divorce does not revoke beneficiary designations under products such as a life insurance policy or RRSP.
Life can become very hectic and it is easy to see how one may not consider the impact of certain events on a will or estate plan during such times. Even the most sophisticated clients may not think to update their estate lawyers on the changes in their life circumstances. This is why it is important for estate lawyers to keep in touch with clients, and vice versa. Lawyers who stay familiar with their clients can remind clients to update wills, powers of attorneys and beneficiary designations to ensure that estate planning reflects clients’ true intentions.