Category Archives: Wills

Drafting for Success

“You can’t take it with you.” This statement often leads clients to chuckle – if it can’t come along for the ride, it doesn’t actually matter who gets it or what happens to it.

But, upon closer reflection, it does matter. Not only can you not take your possessions with you when you die, you won’t be able to guide your loved ones through the difficult task of dividing mementos and assets fairly.

As a parent of young children I often feel as though I should don a striped shirt and wear a whistle around my neck. As a lawyer, clients regularly warn me that the role of referee won’t end when my children reach adulthood. In both my personal and professional lives, I believe it is our obligation to our children to provide them with an environment designed to help them thrive and succeed.

You can’t take it with you, but you shouldn’t leave a mess behind you when you go either!

Legally, you cannot abdicate your testamentary decisions to another person. This means you cannot appoint an executor or beneficiary to decide for him/herself how your assets will be distributed to others following your death. For example, I have had clients say:

“I want my son to decide for himself how much of my estate to share with his sister.”

Statements such as this generally stem from a unique family history rather than from a lack of interest or concern. It is my role as a lawyer to learn that history and work to devise a legally enforceable solution that also meets my client’s practical and moral objectives. For instance:

“I want my son to have a life interest in my farm, so long as he continues to derive his primary source of income from farming.”

If this is the true motivation behind the client’s original instruction, it can be accomplished in an enforceable way that will likely have a far less negative effect on the long-term relationship between his children!

Wills and other testamentary documents should reflect both your instructions and my professional advice. It is my goal to focus on achieving your objectives, seeing beyond the potentially transactional nature of simply drafting a will.

Can I Contest that Will?

In British Columbia, very few people are entitled to contest the terms of your Will. Under section 2 of the Wills Variation Act, the Court may order a modification of the terms of your Will if it determines you have not made “adequate provision for the proper maintenance and support” of your spouse or children. In some cases, the Courts will vary the distribution of assets that you set out in your Will; alternatively, the Courts may add or remove beneficiaries.

ONLY your spouse and children may file a lawsuit under the Wills Variation Act. This legislation defines a spouse as either a legal husband/wife, or as someone you have been cohabitating with for a minimum of two years, in a marriage-like relationship. A child under the Act means your biological child or your adopted child, but not your step-child.

Check here to determine whether you have a claim related to a Predatory Marriage involving an elderly or incapacitated loved one.

Legislative Update!

What constitutes the legal end to a common-law relationship will be changing under the Wills, Estates and Succession Act, which is anticipated to be introduced in early 2013 (See Updates on WESA). If you are contemplating the end of a common-law relationship, or if you are revising your Will following the end of a common-law relationship, qualified legal advice is critical in today’s changing legal environment.

Other Claims Against Your Estate

Clients often express concerns that their siblings, business associates, former spouses and even friends, may attempt to disrupt the administration of their estate by claiming an entitlement to all or part of its assets.  These relatives and associates do not have the right to make a claim under the Wills Variation Act.

While these individuals are not entitled to make legal claims to modify the distribution of assets as set out in your Will, they may be entitled to advance contractual or other claims. This means that if you owe someone money or if you are holding something that does not belong to you at the time of your death, your estate could be sued just as though you could be if you were still living.

 

Inequity Between Beneficiaries

With respect to unequal treatment of siblings, two recent cases have further entrenched the notion that gifts made to a child by a parent prior to death are a legitimate consideration in both the parent leaving a smaller share to that child through the Will, and to the courts refusing to vary such a Will if the child advances a claim under the Wills Variation Act.  Both Doucette v. McInnes(2009 BCCA) and Gould v. Royal Trust Corporation of Canada (2009 BCSC) elevate the importance of gifts made during a deceased’s lifetime beyond previous cases.  In Gould, this is particularly significant due to the fact that the daughter who sought to vary her mother’s Will was physically disabled and had not been gainfully employed for a lengthy period of time prior to her mother’s death. Traditionally, these would be factors that could indicate financial need on the part of the daughter, sufficient to increase her mother’s moral obligation to provide for her.

The Court found though, that in part due to a gift of valuable property to the daughter during her mother’s lifetime, any modification of the Will resulting in an equal division of the mother’s remaining assets would in fact have resulted in an inequitable surplus inheritance by the daughter, to the detriment of her sibling.

Both of these cases also addressed issues relating to estrangement and difficult family relationships, which are unfortunately common in this field of law.  If you have questions about advance gifts you have given or received, or about providing for the additional needs of one child over another, qualified legal advice is imperative to ensuring your wishes are carried out after your death.

A pro forma Will is particularly insufficient to address distributional inequalities between beneficiaries.  For more information on the hazards of a so-called ‘simple’ Will, see DIY Risks.

 

Preventing Family Feuds

When it comes to deciding how their personal items will be distributed or disposed of, clients often say, “Oh, I’ll just let the kids sort that out after I’m gone.” In fact, I probably hear this (or something along these lines) at least once a week.

The trouble is, friction is not always predictable – particularly during the grieving process. I have seen families enter into the emotional and legal equivalents of hand-to-hand combat over items of no monetary value on many occasions:

  • The $10 drugstore watch Dad bought 20 years ago that still keeps perfect time; Dad was so proud of that watch!
  • The plastic picnic dishes Mom always set the children’s table with at family gatherings; still in good shape after four children and six grandchildren.

The list goes on and includes even truly mundane items such as the bagel toaster no one even realized Mom and Dad had owned, tucked neatly away in a cupboard. It also includes that set of three paintings they bought on their honeymoon – while two of three children assume they will each get one, their other sibling may see the set as a single item never to be broken up.

Needless to say, my clients wouldn’t wish trivial arguments on their grieving children, but many simply can’t see it happening to them. To these clients I have often said, “I’m sure you’re right, and after all, I haven’t ever met your children. But… I have met everyone else’s…”

For the most part, I believe my clients are right about their children. The trouble is, there isn’t a reliable way to determine who will turn out to be wrong. Allowing an estate planning lawyer to craft one of several simple solutions for you is one way to ensure that you will be right, though!

It should also be noted that from a legal perspective, it is improper to confer your discretion upon other parties: this is your will, not your children’s. Leaving certain decisions to others could have the effect of making portions of your will unenforceable.

So-called “Simple Wills”

Simple wills can be obtained from a variety of sources: on-line services; drugstore kits, notaries public and yes, from lawyers too. I have even met with families whose deceased loved ones drafted their own wills by hand, from scratch, with no formal guidance whatsoever.

Some people choose on-line and drugstore kits out of an overt sense of privacy, preferring not to discuss such personal matters with anyone. Some choose a notary under the mistaken belief that they offer the same will drafting services that lawyers do. More often than not, though, people choose these options believing they are significantly less expensive than the services of a qualified estate planning lawyer.

This is a misconception! Ironically, it can be an incredibly costly one. For a discussion of common failings found in DIY wills, see DIY Risks.

Most lawyers will agree that simple wills can be beneficial to many families. But, how do you determine that your needs are in fact “simple”? Ask yourself:

  • Have you been married more than once?
  • Do you have minor children or children with special needs?
  • Do you or your spouse have children from prior relationships?
  • Could any of your children’s marriages be headed for separation or divorce?
  • Have you ever loaned money to, or borrowed money from, one of your children?
  • Do you have a partner in your business?
  • Do you have assets located outside British Columbia (timeshare, business, land)?

This is neither an exhaustive nor a determinative list, but if you answered “yes” to any of the above, you likely require more than a simple will.

That brings us back to the question of cost.  If a simple will does work for you, market conditions often dictate little or no variation between the cost of a lawyer and a notary, allowing you to obtain legal advice from a qualified estate planner for the same price as a notary’s computer generated form will.

The trouble with snapping up a simple will without adequately reviewing your needs from a legal perspective is this: IF YOU CHOOSE THE WRONG PRODUCT FOR YOUR NEEDS, NO ONE WILL KNOW UNTIL AFTER YOU ARE GONE.  And therein lies the real cost; the added expense and delay of administering an inadequate estate plan will be borne by your loved ones, who may then require significant legal support before distribution of your estate is possible.

Why Have a Will

People ask me all the time why I believe everyone should have a will. Here are my top 10 answers:

  1.  A will reduces legal costs after you die.
  2. Without a will, your assets and possessions will be distributed in accordance with statutory law rather than in accordance with your personal wishes.
  3. Without a will, additional legal steps will be necessary and will add cost, delay and the potential for conflict among your family members.
  4. Without a will, a bond may also be required before your assets can be distributed, which can impose financial hardship on your family.
  5. If you are separated, your spouse may still receive your assets.
  6. If you die without relatives, a friend or a charity can only inherit your assets under a will – otherwise the Province will receive everything.
  7. If you and your spouse die together without wills, your minor children will be placed with someone the Courts appoint, without any input from you.
  8. If you and your spouse die together, the law assumes the youngest of you died last – the older spouse’s assets may transfer to the family of the younger spouse rather than to his/her own family.
  9. A will makes the process of distributing your estate faster and reduces costs. It clarifies your wishes and reduces or prevents conflict with loved ones.
  10. Without a will, your personal effects are more likely to be itemized and sorted by a single family member, acting without proper authority. This can lead to permanent family conflict or expensive litigation.