Your will provides the opportunity to ensure that after your death your final wishes are given effect. Needless to say, your will should actually reflect your final wishes. However, if your personal circumstances change, we encourage you to regularly review and update your will.
Significant life events are opportune times to update your will. They mark a change in life direction and affect both your wishes and legal obligations with respect to your estate. We discuss several life events in this article: a change in relationship status, the birth of a child, and a significant change in assets. This is not an exhaustive list, but these life events illustrate the thought that should be applied to estate planning. The key point is that an outdated will may undermine the very purpose of a will, so it is important to keep your will current.
Change in Relationship Status
A change in relationship status, whether it is the beginning or end of a relationship, may affect both your wishes and legal obligations in respect of your estate.
In British Columbia, a person becomes your legal “spouse” if that person:
- marries you; or
- has lived in a marriage-like relationship with you for at least 2 years.
In the past, the law stated that marriage would invalidate a will that was made prior to the marriage. However, the current state of the law is that commencing a spousal relationship does not have a direct legal effect on your will. Nevertheless, commencing a spousal relationship is an important time to reconsider the contents of your will.
At the commencement of your spousal relationship, the legal relationship between you and your spouse changes, and this has implications in the estate context:
- if you pass away without benefiting your spouse under your will, he or she will be entitled to bring a claim against your estate to vary your will; or
- if you pass away without a will, your spouse will automatically be entitled to a portion of your estate.
On top of these legal considerations, your preferences have likely changed such that you wish to benefit your spouse. Your will should be updated to reflect your preferences and the legal considerations. With respect to the latter point, it is not difficult to imagine a scenario where spouse #1 wished to benefit spouse #2, but passed away before his or her will was updated. Spouse #2 would have no recourse except to bring a lawsuit seeking a portion of spouse #1’s estate, even though spouse #1 would have provided for spouse #2 under a will. This is an example of a situation that an updated will can avoid.
Separating from your spouse has an immediate legal impact on your will. At the time the spousal relationship ends:
- any gift made to your spouse in your will is revoked and becomes invalid; and
- if your spouse was appointed as the executor of your estate, that appointment is revoked and becomes invalid.
As with commencing a relationship, you may also have different preferences with respect to your estate after separation. For example, you may wish to divide your assets differently under your will or appoint a different executor of your estate. Accordingly, you should update your will.
Birth of a Child
The birth of your child will affect your estate planning preferences in various ways. There are also legal considerations to keep in mind. For example, you may wish to appoint a guardian under your will in the event you pass away and your child has no other legal guardian. In addition, you may wish to ensure that your child benefits, either directly or indirectly, under the will. There are various legal arrangements that can be put into place through your will to ensure that your child receives money after a certain age or has his or her education paid for. There are many possibilities and contingencies to account for, which makes the birth of your child an important time to review and update your will.
Significant Change in Assets
A significant change in the nature and value of your assets warrants reviewing and updating your will.
With respect to the nature of your assets, if specific assets are given under your will and your ownership of those assets changes, you may wish to revise your will accordingly. For example, if house #1 is given to your child under your will, but you recently sold house #1 and purchased house #2, you may want to update your will to account for that change. On the other hand, if you acquire additional assets, you may wish to give specific gifts of those assets to other beneficiaries under your will.
With respect to the value of your assets, if the value increases (or decreases), there are estate planning tools that you may wish to discuss with a lawyer. In addition, your preferences may change such that you wish to give gifts to additional family members and friends under your will, or you may wish to leave a charitable bequest under your will. All of these call for an updated will.
It is not practical to update your will all that often. Weekly or monthly revisions are generally unnecessary. However, there are certain significant events in life that cause reflection. At those times, you should consider how the contents of your will reflect your personal circumstances. If there is reason to update your will, you should contact your legal advisor to discuss your estate planning goals.
The Clark Wilson LLP Wealth Preservation Group and Leave a Legacy Vancouver program of the Canadian Association of Gift Planners worked closely to help build awareness for Make a Will Week (MAWW), a Ministry of Justice campaign that encourages people to create and maintain an up-to-date will. An up-to-date will ensures that the people, charities and organizations you care about most receive the benefit of your estate. Visit our blogs all week for key posts related to MAWW and will preparation.