All About Estates

Life changes…so why shouldn’t your Will?

Today’s blog was written by Courtney Lanthier, Law Clerk at Fasken LLP

I’ve had a few instances where clients have asked “is this really my LAST will, or will I be doing this all over again in five or ten years?” which, in fairness, is a great question. As estate practitioners, we know that the passage of time does not invalidate a Will, however if certain circumstances in your clients’ life have changed, some aspects of their Will may need to be revisited and rethought.

In one of my previous blogs, I discussed how, with COVID restrictions lifting, people are becoming more inclined to travel and may therefore be looking at their Wills to ensure everything is as it should be. There are however other reasons that warrant clients looking to their estate planning documents to make sure that their wishes are properly documented. Some of these circumstances may include, but are not limited to:

  • Marriage

Changes with respect to marriage can directly impact a Will, particularly the dispositive provisions. While marriage no longer revokes an existing Will, if your client does get married (or re-married), it would be a good idea to have them review what their current Will says and consider any changes that should be made to align with their marital status, in order to avoid any potential claims made by their current or former spouse against their estate.

  • Birth of children or grandchildren

When addressing the birth of any children or grandchildren, the issue of specific trust provisions and guardians also arises. Clients may wish to alter the ages in which any children or grandchildren receive a share of their estate, or remove age restrictions completely if a child has attained a certain age. With respect to the birth of children, your client may wish to include a guardianship provision to ensure that any minor children alive on the date of their death are cared for. It should also be conveyed to clients that while they can (and should) name guardians for minor children in their Will, those guardians are required to apply to the court within ninety (90) days after the death of the testator in order to be formally appointed as the permanent guardians. The court will always consider the best interests of the child first, while also taking into account who the client has named in their Will.

  • A named executor or trustee dies

Appointing alternate executors and trustees can save your client from having to re-execute their Wills down the road if a named executor or trustee dies, or circumstances change where they would no longer be able to administer an estate.

  • Change of tax residence of a beneficiary

While we all may have been experiencing less mobility over the past two years, the reality remains that the circumstances of many clients will involve family members determining to seek out education, employment or professional opportunities outside of Canada.  This often leads to those family members then finding happiness which inevitably leads to a permanent change in tax residence.  The tax implications of the family members new found residence may have an impact on how a client structures their inheritance under their Will.

While it may seem like second nature to us, it’s a good idea to remind clients that their Will is an invaluable document that aims to provide their instructions on how to deal with their assets and provide for their loved ones when they are no longer around to provide their wishes in person. While clients may not always want to hear that their last Will may not actually be their “last Will”, one of our many jobs is to ensure that our clients know that as our life changes, so should our Will.

About Fasken
Fasken is a full-service law firm with offices in Canada, the U.K., South Africa and China. We work with clients around the globe, advising on legal issues affecting all types of industry, government and individual objectives.

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