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Friday, March 19, 2010

Can my Will be changed without my knowledge?

The general answer to the question of whether your Will can be changed without your knowledge is "no", but as with all general rules, there are exceptions.

Nobody can make a Will in your place. A Will is a unique combination of facts, thoughts, intentions and wishes that nobody but you could have. If someone is acting under a Power of Attorney or a court-appointed trusteeship on your behalf, they cannot make a new Will for you without your knowledge (in New Brunswick they can do so with court permission only). This is not to say that you cannot have help signing your document, if you for some reason cannot physically sign it yourself. But even then, the contents of the Will still reflect your wishes and not someone else's.

A situation in which your Will might be changed without you specifically intending it is marriage. If you make a Will and then later get married, your Will is automatically revoked, unless it says in the Will that it was made in contemplation of that marriage. Having your Will revoked would certainly be a change in how you thought your estate would be distributed, as the Intestate Succession Act would dictate how it was to be divided. Also, the executor you had chosen in your Will might not be the person who ends up being in charge of your estate.

Sometimes people make changes to their Wills without meaning to. For example, a person might sign a divorce agreement or separation agreement without fully realizing how it affects his or her estate.

It works the opposite way too, in that a person can think he or she has changed the Will when he or she has not. I've met a number of divorced people who think that the general language in the divorce or separation agreement that the ex spouse will have "no claim" against his or her estate means that everything, including life insurance policies, pensions, RRSPs etc have all been changed by the agreement. Unfortunately, all of those financial instruments must be changed individually by the owner.

Also, making beneficiary designations on insurance policies might end up changing things. A common example of that happens when a parent makes a Will stating that the entire estate is to be divided among his or her children, and should one child die, that child's share is to be divided among the child's children (the parent's grandchildren). Then the parent buys a life insurance policy and puts all of the children's names on it as beneficiaries. What often isn't clear is that the policy will be paid to whichever of the beneficiaries is alive at the time, and there will be no payment to the children (grandchildren) if one child has died. Now there will be an unequal distribution of the estate because of the life insurance money.

This is one of the reasons that I do not like most people to use home-made Wills without consulting an estate lawyer. It is well worth the money to spend an hour reviewing your entire situation to make sure that everything you're doing for yourself and your family is really going to happen the way you think it will upon your passing.

As I often tell my seminar audiences, the goal of estate planning is not a piece of paper with "Will" written on it. The goal is to plan, look at everything, tie it all together and attain peace of mind. The piece of paper that you sign at the end of this process is just the proof that you've been through the process.

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