Small will-drafting errors can have big repercussions
By Kirsten McMahon, Associate Editor
Toronto wills and estates lawyer Daniel Bernstein says small words can have big consequences if they are omitted or included in error in a person’s estate plan.
He tells AdvocateDaily.com that, as part of his estate practice, he often reviews or revises wills that were initially drafted by someone else.
“Sometimes clients will come in with their will for review and I’ll come across drafting errors,” says Bernstein, a founding member with Weltman Bernstein. “It's frequently these ‘little’ things that are taught in law school, but if you’re not regularly drafting wills I suppose it’s easy to forget.”
One frequent offender, he says, is the term ‘issue per stirpes,’ which describes the distribution when a beneficiary family member dies before the testator.
Bernstein explains that “issue” refers to everyone down the family tree starting from the testator and includes children, grandchildren and great-grandchildren.
“So when you have a will, you might want to leave everything to your spouse and if they pass before you, then everything goes to your children. That’s pretty standard,” he says. “Then your will would go on to say that if one of your children has predeceased you, their share goes to their children.”
For example, if your spouse had predeceased you and you had three children and your will stated, “My issue alive at my death in equal shares per stirpes,” your estate would be divided into three parts — one part to each child. If one child predeceased you, the estate would still be divided into three parts — one to each remaining child and one to be divided among the grandchildren, he says.
“Sometimes lawyers will mistakenly include the term ‘children per stirpes,’ but that doesn’t make legal sense, causes ambiguity and opens the door to challenges,” Bernstein says. “It's a real problem.”
Another drafting error Bernstein comes across is when a testator wants to leave everything to their grandchild but on the condition that they can’t receive the bequest until they turn 25.
“If that’s all the will says, by law, the grandchild can claim that money at age 18 as set out in the 1841 case Saunders,” he says. “However, if you include a 'gift over provision' which says something along the lines of ‘I leave the money to my grandchild when they reach the age 25, but if they die before they reach the age of 25, then the money goes to another named beneficiary.’ Then the beneficiary will have to wait until they are 25 to receive their inheritance.”
Another drafting error Bernstein frequently sees is lawyers forgetting the anti-ademption rules under the Succession Law Reform Act.
Normally, gifts under a will to a person who has died before the testator have no effect and are said to 'lapse.' However, he says s. 31 of the Act provides that gifts to certain family members (a child, grandchild, brother or sister) who predecease the testator pass to such person’s next of kin.
“For example, let’s say a testator wants to leave a $100,000 to his sister because she’s been married to a good-for-nothing man and he wants to do something nice for her,” Bernstein says. “However, if the sister dies before the testator, the money would go to her good-for-nothing husband assuming the will simply states 'I leave $100,000 to my sister.'
"By slightly changing the provision to read 'I leave $100,000 to my sister, if she is alive at my death,' the money would not be paid to the husband if the sister predeceased the testator. The $100,000 would go back into the residue of the estate and paid out to any residuary beneficiaries," he says.
The original provision created an outcome which was not the testator’s intention but if you don’t draft carefully, you create unintended consequences.
In these cases, Bernstein says it’s advisable to revisit and revise your estate plan when a beneficiary dies to ensure you have an accurate and up-to-date will.