When should I update my will?

A will is something that, once signed, gets put away and not thought about again for many years. Wills don't expire so there is no built-in deadline for renewing them. But we should review and update our wills from time to time. The question is - when? How do we know that it's time to dust off the old wills and check them over?

For those of you (you know who you are) who did your wills so long ago that now you can no longer remember where the wills are or which lawyer drafted them or even what the will says, the answer is that you must get new wills now. If your will can't be found, in effect you have no will.

For the rest of us, a will should be reviewed after important life events take place. Obviously this looks a bit different for everyone in terms of how many years are involved, but the life events are shared by all. They are:

• you get married or divorced
• you are widowed
• you have your first child
• your children all reach the age of majority
• you retire

Other things going on in your life that should spur you to re-visit your will are:

• you own a business and are thinking about retiring or selling
• you buy a vacation property in another country
• one of your children has an addiction, bankruptcy or other problem that interferes with handling money
• you have become estranged from one of your children
• you want to set up charitable giving through your will
• your spouse is experiencing early signs of dementia
• your financial status has changed, for better or worse, since you made your will
• you have moved to a different province or country

Finally, there are events related to the will itself that require you to make some changes:

• the person named as executor has died, lost mental capacity or moved far away
• one or more of the beneficiaries has died
• you want to include additional beneficiaries or remove someone who is currently named as a beneficiary
• you want to hold some beneficiaries' shares in trust

 I encourage anyone who hasn't looked at his or her will in the last five years to take it out, skim it over, and possibly sit down with an estate planner to talk about whether the will still meets your needs. Not every review results in changes being made. If your will is still suitable, you've gained peace of mind without changing your documents.

BC judge rewrites woman's will, giving daughter millions more

There is another new case from BC (estate of Norma Lougheed) in which a judge overturned an individual's will to redistribute the estate. This time it resulted in a daughter receiving another $5million over and above what her mother had left her. Click here to read the story.

I read some of the comments readers had attached to that story in the Globe and Mail, many of whom were outraged at the decision. One comment I read several times was "what's the point of making a will if it's going to be changed anyway?" If that's how you're reacting, please keep in mind that not all jurisdictions have the same law (the Wills Variation Act) as BC.

The worst ways to change your Will

Plans change over time. Over the course of years, people come into your life or disappear from it, your wealth changes, and your wishes for the distribution of your estate after you pass away are shaped by your experiences and your relationships. No wonder so many people want to make changes to their Wills. Unfortunately, not everyone who makes a change to a Will does so in a way that is going to actually bring about the desired change.

Many people want to change their Wills themselves without consulting a lawyer because they feel the change is simple, or they don't want to pay legal fees, or both. This doesn't always work out well. There are rarely explanations available for the speed and secrecy of home-made changes, which cause family members to become suspicious. Here are some of the wrong ways to go about changing your Will:

1.  Scribbling over or crossing out the parts you no longer want - Unfortunately, it may be impossible to tell whether it was actually you who crossed it out, or whether it was someone else who didn't like the contents of your Will. Remember, you won't be around to explain yourself when your Will is needed. Even if you initial the crossing out, this is likely not going to stand up to examination if the Will itself had been signed in front of witnesses who didn't also initial the crossing out. Also, there is the possibility that the words you cross out may affect the meaning of other words around it so that you change more than you meant to. Finally, there is the question of whether you had mental capacity to make changes at the time you did the crossing out.

2.  Writing notes in the margins - Similar problems arise with this as with crossing out, in terms of witnessing and mental capacity. Unfortunately, the inclusion of notes can be even worse than crossing out. Notes tend to be very cryptic to those reading them. It's rare that these notes can be fully understood by others due to abbreviations, lack of punctuation and lack of precision (such as identifying which policy, item or fund you are talking about).

3.  Inserting a new page - There will be questions about when the new page was inserted and who inserted it. It's unlikely to stand up as legally valid, largely because of witnessing issues. The issue of capacity arises again, and if the new page is favourable to a certain person, it may appear that the person influenced you to make the change.

4.  Destroying the Will - While this would certainly be legally valid, assuming you had the mental capacity to intend to revoke your Will, it has the unfortunate effect of leaving you with no Will at all. If you are going to destroy your Will, wait until a new one has been signed.

5.  Telling the lawyer you want changes but then never getting around to signing the new Will - I've been asked this question dozens of times. Clients believe that if they see the lawyer and talk about new wishes, this "means something" and will act as a new Will. It won't. You must actually sign the new Will to make it effective. A few times, clients ask whether they can just sign the page with the notes I've taken during the meeting. That won't work either.

6.  Telling everyone in your family that you're making a new Will but then not doing so - This is probably the worst of all. All you've done is create confusion after your death over whether your family has the right Will, delays while they search for the new one, and possibly suspicion over who "lost" the new Will. Talking about your intentions doesn't turn them into a legally enforceable Will.

The better approach is to have a new Will properly made to incorporate the changes you want. If the change really is small, you could keep the Will but have a brief Codicil made. A Codicil simply amends an existing valid Will. If the changes are to do with personal property such as household goods, jewelry, artwork or the contents of a workshop, perhaps a Memorandum of Personal Effects would be a good idea.

Does appointing a trustee for an elderly person revoke the elderly person's Will?

The short answer to this question is "no". Appointing a trustee for an adult whose capacity is diminishing and needs help with finances does not revoke the assisted person's existing Will. Since I was asked this question recently at a seminar but didn't get a chance to explain my reasons, I'll expand on that short answer here.

Perhaps the thinking behind the question was that a trustee is only appointed when an individual loses some or all of his or her mental abilities. While a person must have mental capacity to make the Will and sign it, there is no requirement that he or she must continue to have mental capacity up until the moment of death.

To me it wouldn't make sense that a Will be revoked by the appointment of a trustee due to decline of mental abilities. Once capacity is diminished, the individual cannot make a new Will to replace the old, revoked Will, Revocation on trusteeship would mean that every adult who had a trustee appointed would die intestate.

Perhaps the question arose because a trustee is appointed to take charge of all of the individual's assets, income, and debts. To some people this might suggest that the trustee has the final say on who gets what from the individual's estate. Keep in mind though that the authority given to a trustee by a court order (or Power of Attorney) ends the moment the assisted person dies. Therefore the Will doesn't come into play until the moment the trustee loses his or her authority. In fact, the trustee should actually be reading the assisted person's Will to make sure that the executor isn't doing anything to contradict it.

Can a murderer inherit under the Will of his victim?

This isn't something I see much of (fortunately!!) but from time to time the question comes up.

Here's an example of the situation. Joe makes a Will naming Sammy and Lisa as his equal beneficiaries. Sammy murders Joe. Now that Joe is deceased, his estate has to be distributed so his Will is read. Does Sammy still get his inheritance under Joe's Will?

No, he doesn't. That's probably a good policy when you think about it, otherwise we might run the risk of people getting impatient for their inheritances and taking steps to get it earlier. That isn't the guiding principle of why Sammy's inheritance is blocked by the courts though; the reason is that people who commit murder are not allowed to profit financially from the crime.

Joe's Will will be carried out as if Sammy had died before Joe.

If I move to a new province, do I need a new Will?

Though Wills have some similarities wherever they are made, it's important to know that all of the laws dealing with Wills and estates are made provincially. Every province and territory has its own law that specifies what makes a Will legal. Also, each province has its own laws dealing with who may make claims against an estate for support.

Enduring Powers of Attorney vary even more widely from place to place. Everything from the form to be used, the eligibility of witnesses and the content of the document is prescribed by law.

If your document does not meet the requirements of the law in your new place of residence, then it will not be valid. You may not even realize that the documents you have in place are not effective.

Whenever my clients tell me that they are moving to another province, or considering doing so, I recommend that they see a lawyer in that new place to review their documents. A review doesn't always result in new documents being made, but it is worthwhile to go through the review process so you know where you stand.

Can't I just use a codicil instead of a whole new will?

A Codicil is an amendment to an existing Will. It's much like a mini-Will, because it has a similar format and has all the same signing/witnessing requirements as a Will. A Codicil is shorter than a Will (rarely running more than one page long) and is quicker and cheaper to prepare than a new Will.

The problem with saying that something is cheaper is that to many people, cheaper is always better. Codicils, like everything else, are useful in the right circumstances. When you need a new Will but all you're prepared to pay for is a Codicil, you're not getting the right document.

A Codicil is intended to make a small change to your Will that doesn't affect the overall structure of your estate plan. For example, if you have appointed your brother as your executor then he moves to Australia, you might not want to have someone that far away to look after your estate. To change your choice of executors, you could easily prepare a Codicil that removes your brother's name and adds a new executor.

On the other hand, if you want to change your entire distribution and set up trusts, you should probably get a new Will done.

The test I've always used to determine whether a client needs a Codicil or a whole new Will is the clarity test. Simply put, I look at the potential for anything in the documents to become confusing or questionable. If a Codicil has any chance at all of messing up the estate plan, then I recommend a new Will.

I've seen as many as six Codicils attached to one Will, which in my view is asking for trouble. Think about it. The Will is document A. Codicil B changes Will A. Codicil C changes Will A. Codicil D changes Codicil B. Codicil E changes Will A and Codicil D. The potential for mix-ups is tremendous.

I also recommend a whole new Will rather than a Codicil if the original Will is not particularly strong, or is lacking a full set of executor's powers.

So can you use a Codicil? As always, it depends on the situation.

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.