Friday, February 27, 2015

Forget coffins: these burial pods allow you to turn into a tree when you die

Funeral choices have expanded over the years, and new options become available all the time. Burial used to be the norm, until cremation became popular. Since then, I've heard of half a dozen new ideas including pressing ashes into a vinyl record, and being pressed into a "diamond". The newest way of dealing with remains is the burial pod that plants your remains along with a tree, in a way that allows your body to nourish the tree. The end result is a green alternative to filling up land with burial plots, as well as a lovely tree for your relatives to remember you. Click here to read more about burial plots and to see an illustration of the process.

The attached photo was found at

William Herd died leaving £300,000 but his only son never saw a penny

Cut out: Stuart Herd with his beloved father in 1954

William Herd was widowed, and married again at 67 years old. He and his second wife, Dorothy, made mirror wills in which they left everything to each other. The wills also said that on the death of both of them, the estate would be divided equally between William's son, Stuart, and Dorothy's son.

If this arrangement sounds familiar, it may be because this is a very typical arrangement in mirror wills.

William died, and the estate passed to Dorothy as he had planned. The unfortunate part for Stuart is that afterwards, Dorothy made a new will which left Stuart out entirely and left everything to her son. Now Stuart is hip-deep in an expensive, upsetting lawsuit, trying to recover some of the £300,000 (about $580,000 Canadian) his father left. 

I've heard similar stories dozens of times. Mirror wills are very common, but in one way they are poorly understood: many believe that the two people who make mirror wills are legally bound to keep their wills as they are after their partner dies. That simply isn't true. It's perfectly legal for the surviving spouse to change his or her will once he or she is widowed.

As difficult as it is to accept, William's will did EXACTLY what he had said he wanted. His will said that if he died leaving a wife, she was to get his estate. That's what happened. After that, his will said that if he died leaving no wife, his estate would be divided between the sons. But he did leave a wife, and so the second part of the will doesn't apply. The will didn't leave the estate in trust to Dorothy. It just gave the estate to her. Therefore it was hers to do with as she pleased, and William's will no longer had anything to do with it.

At this point, the discussion generally turns to the question of the moral obligation of the widowed spouse to honour the deceased spouse's wishes. That doesn't really take you very far. The law will enforce legal rights, but moral obligations are something else entirely. In Dorothy's case, she gave what appears to be a genuine reason for leaving Stuart out; she said she had no contact with him for many years.

This article from a British site called tells Stuart's story, and the stories of others involved in estate litigation. It does an excellent job of describing some of the things that can go wrong when someone doesn't make a will, or doesn't make the right will. Click here to read the story. Although the story is British, our laws are based on British law and are very similar, Most of what is described in this story also happens here. I highly recommend this article to anyone who has a mirror will, in particular, but to everyone who has a family they wish to protect.

Arguably, this is a case of a will not saying exactly what the testator wanted. Stuart says that William wanted him to have half the estate on Dorothy's death no matter which one of them died first. If so, William didn't have the will he really wanted or needed. Specific wording is so very important in wills. So is taking the time to talk through - realistically and frankly - the possible scenarios that could result from your will.

If you have a blended family, don't use a will kit. Don't make your will yourself. Don't copy someone else's will. Don't sign a will made by anyone who simply writes down what you say you want without taking the time to hash out all of the possibilities - both good and bad.

The attached photo of William and Stuart in 1954 accompanied the article in and is credited to Eastnews Press Agency.

Tuesday, February 24, 2015

Is a will prepared in Ontario valid in other provinces or other countries?

These days, with people moving from place to place so much, I'm often asked about the validity of wills once a person moves across provincial or national borders. A reader recently raised the topic, and I thought I'd share the discussion with all of you. Here is the question and my response:

"Is a will prepared in Ontario valid in other provinces or other countries?"

This is one of those questions in which a simple "yes" or "no" answer just isn't going to be enough.

If you make a will in Ontario, then move to another province, will your will be a valid document? Yes, probably. Every province has its own laws regarding wills and probate, but generally speaking the rules about signing and witnessing will allow a will that is valid in one province to be found to be valid in another.

However, that's not the full answer to the question. All that tells you is that you'll still have a will in place if you move. What it doesn't address is whether that will - valid or not - is still going to meet your needs. As I said, the laws are different across Canada. In some ways, they are very different. For example, in Ontario, it is possible for a person to have more than one will, but that's not the case in other provinces. So, you might have two wills that on the face of them are each valid documents, but their contents are not going to work outside Ontario.

There are other examples. In some provinces, but not all, it's possible to use your will to protect a gift under the will from being considered community property. If you have a clause like that in your will you  may not realize when you move that that particular clause is no longer effective. Likewise, the matrimonial home on the death of a spouse is treated differently across the country, and local law may nullify or restrict what your current will wants done with the home.

The safest bet is to consult a lawyer in your new province. You may not need a new will, and an experienced wills lawyer will be able to tell you that once he or she reads your will and talks to you about your circumstances.

As for moving to a different country, you'd be better off assuming that your will is not going to be valid. Again, see a local lawyer once you're settled and bring along your current will for a review.

The Objects 10 Celebrities Took to the Grave

The rituals and customs surrounding letting our loved ones go are extremely important to all of us. A funeral, in any form, is an opportunity to express the personality of the deceased. I'm attaching an article from that talks about 10 celebrities, and the items with which their families chose to bury them. Click here to read the article.

If you have specific wishes for your burial, cremation, memorial service, or celebration of life, you may wonder how to make sure those wishes are honoured. Many people like to include funeral instructions in their wills, but there are two problems with that. One is that the will may not be consulted until after you are buried or cremated, so that it's too late to honour your wishes. The other problem is that wishes you state in your will are just that - wishes - and are not binding on your family.

The person with the decision-making power over your last remains is the executor you appoint in your will. Your executor can legally ignore what your will says about disposing of your remains, and do what he or she thinks is best. Ideally, you should discuss your wishes with your executor. If you express your wishes and your would-be executor recoils in horror at your suggestion, perhaps you need to think about getting a different executor. When a husband and wife name each other as their executors, they generally do know the other's wishes. However, when either the husband or wife is widowed and someone else is named as executor, there needs to be a discussion specifically about funeral wishes.

In reality, most executors do try to honour the deceased's wishes regarding their remains, if those wishes are known. For this reason, I tell my clients that having your funeral or cremation instructions in your will is still a good idea, despite the limitations I mentioned above. If a dispute breaks out among family members regarding what to do about a funeral, everyone will purport to know "what he/she would have wanted". Consulting your will would clear up that issue.

The attached photo of Frank Sinatra accompanied the article on and is credited to Wall Street Journal/

Sunday, February 22, 2015

Facebook allows you to name a digital heir for your account

Millions of people use Facebook, and very few of them think about what would happen to their Facebook account if they should pass away. An article from the Wall Street Journal talks about what Facebook does with the account of someone they learn has died. It also talks about a new option (so far just in the USA but apparently going to be available to the rest of us soon) to name a digital heir for your account. The named person would be able to put up a message advising of the death, change the photo, and allow friends to post messages about the deceased.

It's interesting reading for anyone who uses that social network. Click here to read the story. You may or may not want to name a digital heir for your Facebook account, but at least you should know that it's an option!

Cartoon by Andertoons.

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