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Thursday, December 29, 2016

What does "a will speaks from death" mean?

Recently somebody asked me to explain the phrase "a will speaks from death". I thought it might be something others wondered about as well so I'm sharing an explanation here.

It's all about timing. In law, the phrase means that a will is to be construed as having been signed immediately before the death of the testator.This means that you are presumed to have the intention of dealing with ALL of your property (both real and personal) in your will even if you acquired some of the property after you signed your will. As with most general rules about wills, you can express "a contrary intention" in the will that says that some of your property is not included.

Until the middle of the 19th century, it was the law that if you acquired more property after the day you made your will, then you were presumed to have revoked your will because your plans for your estate must change. In other words, the will only covered what you already owned on the day you signed it. Now, however, the law is quite different. Nowadays, a valid will covers not only what you own when you make the will, but everything you acquire after that as well.

All of your will's provisions take hold when you die and not before. Though this phrase is usually cited with respect to property, it affects more than the question of which assets are covered. There's plenty more going on in your will.

For example, in  your will you name an executor. Because the will speaks from death and not before death, your executor has absolutely no power to deal with your assets while you are alive. I've encountered an awful lot of executors, generally the children of an aging parent, who believe that they have the legal authority to step in and "take care of things early" but in fact, they are wrong.

As another example, in your will, you appoint a guardian for any children that might still be minors when you pass away. What if one day that appointed guardian showed up while you were still alive and asked to take over your children? Would that make sense? Of course not, because the will that appoints them speaks from death only.

Are there any other words and phrases associated with wills, estates, and trusts that you'd like explained? If so, let me know in the comments.

4 comments:

  1. I am interested in better understanding "per stirpes", please and thank you.

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  2. Can you please expand on how "a will speaks from death" when RRSPs created after the will is created cannot be retroactively altered?

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    Replies
    1. An RRSP is normally not included in your estate because it directly names a beneficiary. On your death, the bank pays the money to the beneficiary and the funds never pass through the will, or through the hands of the executor.

      This means that no matter when you make your will, it usually doesn't affect your RRSP.

      Having said that, it is possible to use your will to change the beneficiary designation on an RRSP. But to do that, you have to be specific. You must carefully identify the RRSP you're talking about. Using the bank name and account number is best, but even then, changing it in your will is not really a great idea.

      If you make a will and do not at the time own an RRSP, it will be impossible for you to be specific about the RRSP as it will not yet exist.

      When you purchase the RRSP, you will name a beneficiary at the time. Even if your will said something about changing the beneficiary (which would be very strange but in theory it could happen) then the designation on the RRSP itself would be later than the one in the will and would supersede the will.

      Lynne

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    2. Wow! Thank you so much for your prompt response and explanation. Very helpful!

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