All About Estates

New Year, New Will – and Other Important Moments to Revisit Planning

Happy 2024  everyone! The start of a new year is often the impetus for individuals to revisit their estate plan.[1]  While this is a worthwhile exercise, it’s important to remember that there are several other key moments that may occur at any point during a given year that should give rise to a review of an estate plan. These events or change in circumstance may not necessarily warrant a new Will, but they should serve as the starting point for consideration and discussion:

1. A named Executor and Trustee dies or is otherwise unable to act. The death of an Executor and Trustee (or the loss of capacity of such person) does not invalidate a Will. In addition, Wills often name an alternate Executor and Trustee where the first-named person dies or otherwise is unable to act. However, the loss of the first-named Executor and Trustee is a moment to consider whether the alternate named individual is the appropriate person to act. If there is no such alternate person named (or if the alternate person has also passed away or otherwise cannot act), the Will should be redrafted to include a new Executor and Trustee.

2. A named beneficiary dies. The death of a beneficiary does not revoke a Will. What happens to the named beneficiary’s interest in the estate depends on the wording of the Will, and whether the “anti-lapse” rule applies. If the Will provides that the gift is conditional on the deceased surviving the testator, then the gift simply lapses if the beneficiary predeceases the testator. If the Will provides for a giftover to the beneficiary’s issue (or some other person(s)) if the beneficiary predeceases the testator), then the gift will instead be made to such person(s) provided that they survive the testator. If the Will does not include a survivorship clause, then, depending on the relationship of the beneficiary to the testator, the anti-lapse rules in Ontario’s Succession Law Reform Act may—depending on the relationship between the deceased beneficiary and the testator—operate to have the gift distributed to the deceased beneficiary’s spouse and/or issue.

Whether the death of a beneficiary warrants a redrafting of the Will will likely depend on the nature of the gift. For example, a testator may determine that the death of beneficiary who was to receive a small legacy does not require the Will to be redrafted and re-executed. In contrast, the death of the sole residuary beneficiary may make the testator reconsider the alternate beneficiaries, and, if applicable, the terms of the trusts for such beneficiaries (for example, where a spouse dies unexpectedly, such that the residuary beneficiaries of the testator’s estate will now be the testator’s children, the testator will likely want to carefully consider the trust terms for their children in light of their spouse’s death).

3. The Will includes a gift of specific property which the testator no longer owns. In this case, the gift would lapse upon the testator’s death. The testator may wish to revisit their Will in this circumstance if the item was of value and the testator now wishes for the intended beneficiary to receive a different benefit of a similar value from their estate. Alternatively, if the item was sentimental in nature or of limited (financial) value, the testator may determine that the Will does not need to be updated. Notably, the use of a separate letter of wishes for personal effects can help alleviate the need to revisit the entire Will each time an item is disposed of.

4. A person named in the Will changes their name. The change of the name of an Executor and Trustee and/or beneficiary of an estate does not invalidate such person’s appointment and/or gift, but it will likely create challenges in the administration of the estate. It is a kindness to the Executors and Trustees for a testator to update their Will to reflect such person’s new name.

5. The testator has a child. The birth of a child (in particular, a first child) likely warrants a new Will. The Will should include provision for the child or children, trusts to hold any interest in the estate for such child or children until they reach an appropriate age, and a guardianship provision that sets out who the testator would like to act as guardian of the child for the first ninety days following the date of their death if the child or children’s other custodial parent(s) is or are not then alive (and express an intention that such person(s) then apply for permanent guardianship).

A testator may similarly wish to revisit their Will after the birth of a grandchild, though the guardianship provision will not be necessary unless the grandparent has custody of the child.

6. The testator’s children get older. A testator should revisit their Will as their children get older to ensure that the trust terms included in the Will are still appropriate given both the assets owned by the testator (discussed further below) and the maturity level and life status of their children. If the testator’s children have all reached the age of majority, the guardianship provision can also be removed from the Will, though if it is not removed and the testator’s children are all over the age of majority at the time of the testator’s death then the provision will simply be inoperative.

7. The testator’s marital status changes. Marriage, separation and divorce—as well as entering or exiting a common law relationship—all merit a revisit of a testator’s Will.

In Ontario, marriage no longer revokes a Will. However, unless a testator’s Will executed before marriage made significant provision for his or her spouse, the testator should have a new Will prepared that includes the spouse as a beneficiary.[2]

If the testator divorces their spouse, or has been living separate and apart from their spouse for three years,[3] then on the death of the testator the Will is read as if the spouse has predeceased the testator. However, the testator should re-execute their Will without reference to their former spouse to prevent administrative difficulties for their Executor; this is particularly so if there is any potential for there to be a disagreement about the length of the separation between the testator and their former spouse.

Perhaps most importantly, a testator who enters into a common law relationship and who wishes to provide for their spouse on death needs to prepare a new Will to provide for the common law partner, as the common law partner will not otherwise have any property rights (such as equalization) in the deceased’s estate (though they may bring a claim for dependant’s support). Similarly, regardless of whether a testator and their common law partner separate during their lifetime, if the testator’s Will specifically names the common law partner as a beneficiary then upon death the testator will not be able to benefit from the rules that apply to divorced or separated married couples. Accordingly, it is important for the testator to update their Will in this circumstance, or else their separated common law partner could inherit against their wishes.

8. The testator experiences a significant change in their assets. Changes to assets may include significant increases or deceases in value, or the acquisition or disposition of assets in another jurisdiction.

An increase or decrease in asset value may lead the testator to add or remove certain gifts in their Will (for example, if their asset values increase they may then wish to add charitable donations, or make additional bequests to family or friends). Similarly, a testator may wish to adjust the ages at which their beneficiaries may receive assets from a testamentary trust, based on the expected value of such trust.

If a testator acquires assets in a foreign jurisdiction, they should revisit their planning to determine whether it is appropriate to execute another Will (or complete other testamentary planning) in that jurisdiction, in which case their Canadian Wills should be reviewed to ensure that they mesh with the documents prepared in the other jurisdiction. Similarly, the disposition of assets may warrant simplification of planning and the terms of their Canadian Wills.

9. The Will includes beneficiary designations and the underlying assets change. While most of the Will speaks to assets held at the testator’s date of death, any beneficiary designations included in the Will for registered plans or life insurance are only in respect of those assets held on the date of execution of the Will. If the testator opens a new account, changes financial institutions, or converts an RRSP to a RRIF, they will need to update the beneficiary designations in their Will.

10. The testator moves jurisdictions or changes citizenship. A testator’s Canadian planning may not be effective in another jurisdiction where they reside or hold citizenship, and they should accordingly seek advice in that jurisdiction on their estate plan, and, if applicable, adjust their Canadian Will as necessary. Even within Canada, planning that is done in one province may not be effective in another (for example, not all provinces recognize the use of “dual Wills”). Accordingly, the testator may need to seek counsel in all jurisdictions where they a) hold assets, b) reside, and c) hold citizenship, and update their testamentary documents accordingly.

Finally, it is nonetheless worth revisiting planning every few years, even in the absence of any of the above factors, to ensure that the Will accords with the most recent state of the law.

Happy New Year everyone!

[1] This topic was canvassed excellently by Emily Racine in yesterday’s blog post as well. This blog post was written in advance of yesterday’s blog, and has been published to provide some additional thoughts on the subject.

[2] Unless the parties have a domestic contract that ousts any claims for equalization and/or dependant’s support.

[3] Or for less than three years where there is a separation agreement, a court order, or an arbitration award in place.


About Emily Hubling
Emily Hubling is a partner in the Trusts, Wills, Estates and Charities group at Fasken. Emily has experience in advising estate trustees in administering a range of complex estate matters, including intestacies, cross-border matters, and contested estates. Working closely with clients’ advisors, Emily prepares Wills, Powers of Attorney, and Trusts to assist clients in fulfilling their unique estate-planning objectives.

1 Comment

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.