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Thursday, March 24, 2011

What does it mean that a "will speaks from death"?

The laws of individual provinces and territories in Canada state that "a will speaks from death". This is an important operational concept that has an impact on what is covered by your will and what is not. The concept means that regarding your property (real and personal), your will is treated as if it were made immediately before you die.

For example, you might have made a will in 1995 leaving everything to your spouse. At that time, not owning a crystal ball, you would not have known exactly what you would own when you pass away, but you made a will that refers to "all my property". Does this mean "all your property" that you owned when you made the will, or "all your property" that you own when you die?

In 1999, you bought a house.  In 2002 you began an investment portfolio. If you should pass away in 2011, your will is not restricted to assets you owned in 1995 when the will was made. On the contrary - it includes the house and portfolio you obtained after you made the will because the will is treated as if you made it right before you died.

The "speaking from death" concept is a method of ensuring that all property, regardless of when it was obtained relative to the will, is dealt with by the will.

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