Creating a will is an important step in creating a comprehensive estate plan. However, a will should not remain static. Instead, it should be treated as a living document that is reviewed on a regular basis and updated as needed to reflect changes in one’s life or circumstances. The security of having a will in place could be lost if the will becomes outdated and no longer reflects the testator’s life circumstances or wishes. Below, we will review some common circumstances that should prompt a review of an existing will, as they could necessitate changes to an estate plan.
How Often Should I Review My Will?
It is recommended that a person review their will and their overall estate plan at least every three to five years. However, if a significant life change were to occur sooner than that, it is wise to identify and make any changes as soon as possible to reflect the change in circumstance.
What Specific Changes Should Prompt a Review of My Will?
Marriage, Separation, or Divorce
A change in marital status should prompt a review of a will to ensure the document continues to reflect the testator’s intentions. Prior to the passing of the Wills and Succession Act in 2012, a new marriage invalidated a person’s existing will. While this is no longer the case, a testator should still be sure to update their will to include their new spouse. Further, spouses may wish to create mirror wills, in which the terms included in each spouse’s will mirror the other. Likewise, testators who enter into an adult interdependent partnership, otherwise known as a common-law relationship, should similarly update their wills to include their new partner.
Divorce, or the termination of an adult interdependent partnership, has a significant impact on a will in Alberta. Under s. 25(1) of the Wills and Succession Act, any of the following terms of a will created during the marriage or partnership will be deemed to be revoked:
- Any interest in property given to the former spouse or partner, whether individually or as part of a beneficiary group.
- Any power of appointment to the former spouse or partner.
- Any term appointing the former spouse or partner as an executor, trustee, or guardian of a child under the Family Law Act.
It is possible to avoid this outcome by including a term in the will which specifically states a contrary intention of the testator. It’s important to note that an adult interdependent partnership is deemed to be terminated following a one-year separation period. A marriage, on the other hand, is only deemed to be terminated once a divorce order has been granted. If a married testator is separated at the time of their death, the above terms will not be automatically revoked.
Due to the impact of s. 25(1) of the Wills and Succession Act, a testator who created a will during a marriage or adult interdependent partnership should be sure to revise their will post-divorce or separation, as the case may be.
The Birth of a Child, or the Addition of Stepchildren
A new baby should prompt parents to review their entire estate plan to ensure they’ve properly planned for all potential outcomes. This could include taking on additional insurance, adding a clause to a will that would create a trust for any minor children, and appointing a legal guardian for minor children in the event it becomes necessary. The will should also address the child’s beneficiary rights. If it does not, the estate may face dependants’ relief claim, which can take time to sort out, as well as reduce the value of the estate available to distribute among the beneficiaries.
Unlike biological or adopted children, stepchildren do not have inherent rights with respect to a stepparent’s estate. If a testator marries after creating their will and wishes to provide for their stepchildren, it will be necessary to revise the will by adding clauses reflecting their intentions.
Moving to a New Jurisdiction
Whether moving out of the country or to a different province, it is important to consider that the laws in the new place of residence may be considerably different from the previous one. If making a permanent move, we would advise any testator to have their will and other estate documents, such as a power of attorney, reviewed by an experienced lawyer in the new jurisdiction, to identify any potential issues that need to be addressed.
The Death of a Beneficiary or Executor
Most wills will contain a clause appointing an alternate executor if a named executor were to predecease the testator, or if they are unable to act as executor for some other reason. However, in cases where the named executor has died, it could be beneficial to alter the will, appointing a new executor or alternate executor, reducing the chance that none of the named executors can act when the time comes.
Additionally, if a named beneficiary pre-deceases the testator, it is similarly advisable to update the will and appoint a new beneficiary. Otherwise, a predeceased beneficiary could lead to delays in probating the will and distributing the estate.
Find Confidence in Experienced, Professional Calgary Wills & Estate Lawyers
At DBH Law, we take pride in the relationships we have built with our clients, and the opportunities we have to represent their estate planning needs as they grow and evolve. Our will & estate lawyers will help design a will customized to best provide for your family and loved ones while also minimizing the taxation and chances of litigation your estate may face. We can be reached by phone at 403.252.9937 or online and look forward to the chance to learn about what is important to you, and how we can help you achieve that.