What you need to know about wills and estates


What you need to know about wills and estatesA will is a document by which a person directs how their property is disposed of after death. Although no particular wording is required, it is necessary that the document shows clearly the intentions of the party making it. Problems arise when the wording used is interpreted in different ways and in such a case, the will can be challenged and voided or misinterpreted. As a rule, legal language should be used so that a court will know exactly what was meant by the deceased. Each province has a statute that governs how wills will be interpreted and governed.

The law concerning wills is very old and complex. There are a number of procedures which a lay-person would not be familiar. If a lay-person were to draft a will and make an error the will could be subsequently declared null and void. An error as small as not dating the Will or having a potential beneficiary witness the will could result in the will being of no force or effect. In such a case, an estate of a deceased person leaving a void will would then fall under the government rules and the government would dictate how the estate would be transferred. The effect is a deceased person would not have a say in how their estate would be divided.

It is always advisable that wills be drawn by a solicitor in order that proper wording is used to cover the circumstances and effects that the deceased may not be aware. A lawyer will also be able to advise the deceased of an appropriate executor or trustee in the particular circumstances and provide information as to existing succession duty laws in the province. Issues that are common are:

  • Where assets exist which the testator owns and how they would need to be transferred in the event of death
  • Joint ownership of assets and how to avoid taxes on transfer on death
  • Disinheriting potential beneficiaries
  • Setting up trusts for children
  • Disabled beneficiaries
  • Unequal distributions to beneficiaries
  • Guardians of children in mixed families

A will should be reviewed every five to ten years to make appropriate revisions and to account for any changes in the testator’s assets. A will can be revoked by signing a special document. It is important to keep in mind that a new will always revokes a previous will.

Your will needs to be updated in any of the following circumstances:

  • A change in relationships occur (i.e. divorce, marriage, separation)
  • A beneficiary dies before you (unless you want those assets to be distributed according to your Will’s Residual Clause)
  • Any major assets, such as a car or property, are purchased or sold
  • You or anyone else mentioned in the will has a name change.
  • You have children or your children reach the age of majority
  • You move to a different province, state, or country
  • Your relationship with anyone mentioned in the will changes

Even if you do not need to update your will, you should still review it regularly (at least once per year) to be sure that no changes are necessary.

For legal support and real answers to legal questions, we provide expert, confidential information about how the law applies to specific situations. To find out more about wills, call 1 866 833-7690 or visit workhealthlife.com.


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