At the heart of any estate plan is a solidly written will – it outlines your wishes following your death, including how you want your assets dispersed. Without a will, an estate risks additional legal entanglements where government legislated rules and processes – not you – play a larger, if not absolute role, in determining what will become of your estate - the management of your estate and your estate assets (your investments, real estate, family heirlooms and other belongings).
However even with a will in place, issues such as ambiguous language can create problems for loved ones. For a clear understanding of potential pitfalls – and how to avoid them – we spoke with Michael Dupuis from CBM Lawyers.
What are some of the most common ambiguities in a will?
- Names not matching intentions: Leaving your estate to your “children”? Keep in mind the generic term “children” will not include step-children, unless you legally adopted them.
- Will details not matching how an asset is owned: The right of survivorship means jointly owned property or accounts become the property of the surviving co-owner – they can’t be left to a beneficiary in the will.
- Will details not matching corporate planning: Your will doesn’t contemplate corporate agreements made with business partners or tax planning that is needed for your business when you die.
- Assets no longer available for the will: Aunt Susan’s will bequeaths you her car, but she sold it before she passed and didn’t update her will.
- Lack of clarity on gifts and loans made in life, and how to treat them after death: Grandpa loaned you money for a downpayment… When he passes are you still expected to pay that back or does it come out of your inheritance?
- Improper signing and witnessing: Strict rules govern wills for them to be valid, including having the will-maker and two witnesses (who are not benefiting from the will) together for signing.
- Improperly amending a will: An individual’s hand-written changes are not valid – changes must follow the same formalities and witnessing as the original will.
What if a loved one dies and the will details aren’t clear?
Most issues around clarity are resolved either with an agreement between the estate and beneficiaries or by specific legislation. Lawyers can try to clarify the law’s applicability to the situation or consult other professionals, like an accountant, but sometimes issues will need to be negotiated or even litigated to be resolved.
“What happens next in situations like this depends heavily on key factors like where the lack of clarity is, what it’s about and how serious it is,” Dupuis says. “Lack of clarity can make it harder for the estate to be administered and finalized, and can cause disagreements and legal fights, with the value of the estate decreasing as legal expenses arise.”
Best practices for your will
The last thing you want following your death is to cause additional stress for your loved ones. Dupuis shares his tips to prevent that:
- Speak to a legal professional – they have the experience to help. While there’s no legal prohibition to drafting your own will, they are subject to the same scrutiny and the same rules apply.
- Regardless of the size of the estate, a will sets out your intentions and final wishes. Remember that how you feel and how you write can be very different – working with a professional can help clarify your intentions.
- Many common situations cannot be readily addressed by a simple will – situations involving children from previous relationships, family members who are disabled or struggling with addiction, or situations involving business interests, are all important issues that must be carefully worded.
For more information, connect with CBM’s wills, estates and trusts team by phone at 604-262-2046 or by email: info@cbmlawyers.com.
Find the full list of legal services provided by CBM Lawyers here.
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