DOES YOUR WILL CONTAIN AN ERROR?
By Kavina Nagrani, JD, TEP
Identifying potential issues in your Will today could save your Estate thousands in legal fees later!
If your Last Will contains any of the following mishaps, it may be time for a re-write.
1. Accidental Revocation of Beneficiary Designations.
The revocation clause usually appears at the beginning of a Will. If your revocation clause contains the phrase, “I revoke all prior Wills and testamentary dispositions,” you should be advised that beneficiary designations made on your RRSP/RRIF or Life insurance policies before the date of the Will, will be revoked.
2. No Mechanism for Replacement Trustees.
Without an appropriate replacement provision, the resignation or renunciation of a Trustee (aka Executor) may require a court application. Although most Wills today have alternate Trustee appointments, they often miss the replacement mechanism – referring to ‘how’ replacements should be handled, especially for testamentary trusts within the Will.
3. Missing Trusts for “Potential” Minor Beneficiaries.
Where the principal beneficiaries under a Will are over the age of majority, trusts for minors may not be contemplated. But what if one of your primary beneficiaries predeceases you and has left children surviving who will inherit their deceased parent’s share? In this case, your Will should have a testamentary trust, even if only for a contingent scenario. Without a trust, payments over $30,000 will be paid into court until the beneficiary turns 18.
4. No Mechanism to Deal with Sentimentals.
You may never think in a million years that your family members would argue about who should get your wedding ring, your watch, your raptors tickets, that Royal Doulton collection, the family portrait, the painting in your living room, your guitar, or your old baseball card collection—but it happens! Your Will should empower your Trustee to oversee the distribution of contentious sentimental items fairly. Auctions, coin tosses, and drawing straws may seem trivial but can keep these issues out of the courtroom.
Further, minor beneficiaries cannot inherit property. In addition to conflict resolution clauses, it would be wise to include a provision that ensures that the sentimental items your minor beneficiaries, such as a young child, will likely desire to be safeguarded for when he or she becomes of age.
5. Missing the Affidavit of One Witness.
All Wills registered with the court on death and subject to what we call the “probate” process require a sworn affidavit by one of the two persons who witnessed Will’s signing. If your Will does not already have the affidavit attached, it may be too late when the time comes to locate one of the two witnesses to swear this for you. A missing affidavit will not invalidate your Will, but it can make the probate process more cumbersome and costly. We suggest you track down one of your witnesses TODAY and get this document in hand.
6. Overly Complex Wills.
Your Will is a personalized document, but solicitors often include boilerplate clauses that are irrelevant or unnecessarily wordy when drafting. At best, this makes your Will difficult to interpret, but at worst, this may result in provisions that are contrary to your intentions. For your Will to be valid, it is essential that you understand its contents. Do not be shy to ask your lawyer to simplify the language or to explain every clause. Be wary of what you would call ‘standard terms’ or ‘boilerplate clauses,’ which in some cases should be removed for your purposes.
We could undoubtedly provide you with many other common errors found in Wills. Ultimately, your Will should serve as a clear expression of your wishes and instructions on how your estate should be dealt with upon your death.
If you are in doubt, it may help to have your Will reviewed by an Estate lawyer that did not draft your Will to see if any holes need to be plugged. A second opinion usually helps and may give you peace of mind.