It’s Worth Preparing A Will Properly

Making a will is a sensible and considerate thing to do. But beware of typing your own will, using a pre-printed form from the local stationery store, or buying a cheap will advertised online, over the radio or TV. 

You could end up with serious problems. Consider the following true story.

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A former school board employee died leaving an estate worth $500,000. She wanted her daughter to inherit it all. However, she’d bought a “drug-store” will and gone to her neighbours’ house to sign it over drinks. Her neighbours signed as witnesses, but she forgot to sign. That meant the will wasn’t valid and her estate would be distributed as if she’d made no will. Her husband would inherit a large chunk, contrary to her wishes.

Fortunately, her lawyers found an earlier will, which was valid, and under this will, her daughter received a major portion of her mother’s estate as intended. 

If you die without making a will, the Wills, Estates and Succession Act determines who inherits. If you’re married but have no children, you spouse gets your estate. If you have children, then how much they get depends on whether they are also your spouse’s kids (or if they are your children from a previous relationship). So, if they’re also your spouse’s children, then your spouse gets the first $300,000 of your estate. If not, then $150,000 goes to your spouse. Then one-half of the rest of your estate goes to your spouse; the other half is divided among your children.

Having no will can create problems, as it did for the children of Mr. Y. After their father married Ms. W., who’d been divorced twice, Ms. W. lived with him for a month, then left. Mr. Y. started divorce proceedings but died, without leaving a will, before the divorce was finalized. Ms. W. applied to the court to inherit his estate. The children’s lawyer argued: “Why should a wife of one month take over the kids?” But because there was no will, the law dictated she’d inherit a large portion of his estate.

One reason for making a will, therefore, is to specify exactly who gets what, thereby avoiding the predetermined family scheme under the Wills, Estates and Succession Act.

If you have young children, another important reason for making a will is to appoint a guardian you’ve chosen to look after them if you die before they’re grown. Otherwise, the court might name as guardian your brother Harold, who would be totally unsuitable in your eyes.

A will also allows trusts to be created for a variety of situations, for example, to provide for incapacitated individuals or as self-protection for adult beneficiaries who might be unable to properly manage their own money.

Finally, a will gives your chosen executor authority to begin acting immediately on behalf of your estate at the moment of your death. If you don’t have a will, someone will have to apply to court to get authority as an “administrator,” and this delay could prejudice your estate.

A will is only one part of an estate plan. A good lawyer will help coordinate all the parts – your will, life insurance, RRSPs, investments, etc. – so they work together to form a cohesive plan. And a lawyer experienced in estate planning may be able to help you design your affairs so your estate can be settled quickly and easily without going to court.

More information available on our Wills and Estates Law page.

Written by Janice and George Mucalov, LL.B.s as part of the YOU AND THE LAW series of articles, with assistance from FABRIS McIVER HORNQUIST & RADCLIFFE.