REVIEWING YOUR WILL

There are three reasons to review a Will to consider whether changes are necessary. First, the facts upon which the original Will were based have changed. Second, the law may have changed with respect to Wills and/or Powers of Attorney.

Factual Changes

Since making the Will, children and or grandchildren may have been born who are not referred to in the original Will. Also, the children may now be old enough to be the executors of the Will and perhaps should replace the present executors.

If one is separated from a spouse but not yet divorced, even if there is a separation agreement or court order, the existing Will may still leave the spouse the estate. As that is not what is probably intended, a new Will is necessary because the parties are still married and the Will is still valid. If one has married since making a Will then there is no Will because a Will is automatically revoked on marriage. A new Will is therefore necessary, especially if there are children from a previous marriage who are to receive the major part of the estate. If one has divorced since making a Will then the first spouse is automatically removed from the Will. This is probably what one would desire but if not a new Will is needed.

There may be beneficiaries whom one no longer wishes to benefit. The named executors may have died or are no longer appropriate for the job. The same may be true for the persons named as custodians of minor children.

Lastly, the size and nature of the estate may be now such that a different executor such as a trust company is necessary. This need for a corporate executor may be because of the competency of the beneficiary. Also, one may now wish to add more beneficiaries such as favourite charities.

Changes in the Law with Respect to Wills

The Ontario Family Law Act, which was passed in 1986, affects the drafting of Wills. A surviving spouse could sue the estate if she or he were not given in the Will the same amount of assets they could obtain in law upon a separation. It should be noted that life insurance and pension benefits would not be given to the spouse if he or she chose to sue the estate and therefore must be considered when deciding to assert a Family Law Act claim. Therefore, to avoid such litigation having a marriage contract, obtaining more life insurance or calculating the legislated amount required might be needed. In most cases where the surviving spouse is the sole beneficiary there is no such problem but in most second marriage situations there may be a problem that should be corrected.

The Family Law Act specifically excludes from equalization of assets on marriage breakdown the income from inherited property if so stated in a Will. Therefore, all Wills should recite such a statement, so to somewhat help one's children if they later separate. Wills made prior to 1986 would not have such a statement.

Since the Succession Law Reform Act in 1979 the definition of children would include children who were born outside of wedlock. Therefore, if such children do exist and for some reason it is not intended that they inherit under the Will, then that intention must be made clear in the Will.

In the last few years there has been confusion as to the distribution of property that had been held in joint tenancy. It may not automatically go to the surviving joint tenant. It is therefore prudent in some situations where joint tenancies exist to state the rights of the surviving joint tenant.

Changes in the Law with respect to Powers of Attorney

Changes of facts or in the law might necessitate the change of the attorney appointed or terms of one's Power of Attorney. In 1995 the laws regarding Powers of Attorney have dramatically changed.