August 3, 2020

When should you review (or renew) your Will?

In Ontario, there are certain circumstances where it is important to review your will to ensure that it is still valid, and that it still reflects your wishes in the event of your death. If you do not already have a will, these are also some circumstances where you should consider obtaining one.

Marriage

Getting married is a joyous occasion. However, anyone who has gone through the process knows that there is a lot of legal documentation to be filled out afterwards. It is important not to forget to think about getting a will prepared after getting married, even if you think you already have one.


In Ontario, under the Succession Law Reform Act, a legal will is automatically revoked upon marriage. When you get married, you should always ensure you update your Will to ensure your assets go where you wish in case of tragedy. If you are planning on getting married, and want to prepare a will that will not be subject to automatic revocation, speak to a lawyer about ensuring the will meets the requirements to avoid this.

Separation and Divorce

Your will is not automatically revoked upon separation or divorce from a spouse. This means that there are circumstances where a person’s estate could go to their ex if something happens to them. Until a divorce is finalized, your will remains wholly intact. Upon the finalization of divorce, certain parts of the will become void (such as powers/property given to your ex-spouse), but the document itself otherwise stands until revoked or replaced. If you separate from your spouse, consult a lawyer about how to ensure that your will is updated to reflect your intentions (even if you still intend to leave something to your ex).

Birth or Adoption of Children

Another important function of a will is to name the person or persons you wish to raise your child(ren) if both of their parents pass away. If you do not update or renew your will upon birth of your children, this could lead to uncertainty as to who will take on this responsibility and, in unfortunate cases, disputes between your family members after you are gone. It is always important to update or renew your will when children are born to avoid causing unnecessary additional pain upon your death.


Children Attaining Maturity

Another consideration when you have children is to ensure your will is updated once they reach the age of maturity (18 in Ontario). Firstly, they will no longer require someone to become their guardian after you die. Secondly, you will need to think about whether you believe your legally mature child is responsible enough to handle a potentially large inheritance. Without contrary instructions in a Will, an 18-year-old individual will be entitled to simply take control of an inheritance without any strings attached. Many people therefore choose to designate an executor (be it a trustworthy friend or older family member, or a professional) to manage their children’s inheritance until they reach a certain age. This can even include instructions regarding an allowance for living and educational expenses.

Conversely, if you are confident in the maturity and responsibility of your adult children, you will want to review your will as you may want to consider naming them your executor or alternative executor upon your death. Before having kids, many people name a parent or sibling as their executor, or as the alternative executor to their spouse. Once your children are old enough, you may wish for them to take on this responsibility themselves.

Death of a Spouse, Executor, or Beneficiary

Two of the main things a legal will does is to name an executor to distribute your assets upon your death, and name the people to whom those assets are to be distributed. When you are
married, this person is most likely your spouse. While most wills name an “alternate” executor and beneficiaries in case of the death of the primary person(s) named, it is important to review your will upon the death of the person or persons named as executor and beneficiaries to ensure the will still reflects your wishes and the death doesn’t cause some unintended consequences.

For example, in the case of the death of a child, do the will direct their “share” of your estate to their children, or does this revert to another sibling or family member? It is important to review your will to avoid unintentionally cutting someone out of your will. In the case of the death of a spouse, is the alternate executor named in the will still alive, and are they the same person you want handling this kind of responsibility today?

Questions?
If you are thinking of getting a will prepared or have questions about the process, feel free to contact Rose Law Firm. Please note that the above article is intended for informational purposes only, and is not to be construed as legal advice. Please consult with Rose Law Firm or another legal professional for legal advice related to your estate.

About the Author:

Joshua Shields is an associate lawyer in Toronto and Burlington.

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