Estates & Wills & Trusts

Change in family situations can trigger need for new will

By Jennifer Brown, AdvocateDaily.com Senior Editor

Families grow and change over time and when life events such as remarriage or the birth of new grandchildren occur, it might be time to revisit your will, says Toronto trusts and estates lawyer Patrick Aulis.

“Obviously marriage is an important time to think about re-doing your will to address the new situation even if nothing else changes,” says Aulis, founder of Aulis Law Firm Professional Corporation and North York Mediation.

“If you had a will, and then you get married, and it’s a second marriage, you have now revoked your will. Suddenly that estate plan goes out the window, and you fall back on the statutory provisions.”

A good practice is to regularly review your will and consider whether marital status or the death or birth of family members may alter your overall estate plan, Aulis tells AdvocateDaily.com.

Divorce can cause provisions for a previous spouse to lapse, but it could have other unexpected consequences.

“It could result in a full or partial intestacy depending on how the will is drawn. If the former husband was appointed to be an executor of a significant part of the estate, they might no longer be entitled to that role. Unless the will has provided an alternate, it could fall into an intestacy which could require additional legal work,” Aulis says.

Grandparents may also want to consider amendments when it comes to children who have been born after a will has been made.

“There was a case where a woman wrote her own will — a holographic will written in Chinese, but it met the legal requirements. The problem was she left an education trust to two grandchildren and not to two others because they weren’t alive when she drafted the will, or she didn’t want to favour them,” says Aulis.

“My guess is she never turned her mind to re-examining her will. In one case, one of those two new children was a sister of the two brothers. In that family, two children benefited from an education trust, but one did not. That creates an awkward situation.”

Aulis notes there is no legal requirement to update your will to include other children.

“In that case, the Office of the Children’s Lawyer intervened to make sure the trust was properly set up for the two boys and was not concerned at all with the daughter because it’s beyond the instructions of the will. Even if mom used it for the daughter, she would be falling afoul of the trust provisions, and it could have dire consequences,” he says.

Losing a spouse or other family members can also spark the need to make a change to an estate plan.

“Many wills are drafted to account for the fact people may predecease you, but there are instances where someone passing away creates a difficult situation when they are the last one in the chain. They don’t know what to do with the money, so it falls into an intestacy, or hypothetically there is no alternate executor and no clear-cut alternate person to take charge of the estate,” explains Aulis.

One example is a situation where a husband and wife create mirror wills — a good practice if it states that if both people die, the estate goes to a designated other person or persons, he says.

“I’ve had situations where the second person named has also passed away, and you have to come up with an alternate and explain to the court why,” says Aulis. “That’s a situation that can be avoided by regularly reviewing your will.”

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