Say what you mean in your will, because a court might not figure it out for you

One of the biggest drawbacks of home-made wills is that people are not very good at making their intentions clear to others. Even when wills are made by lawyers, from time to time there is a clause that is unclear. When this happens, the executor will have no choice but to resort to the courts for help in figuring out what the heck to do with the estate.

A new case from Nova Scotia has clarified what the court is and is not prepared to do in these situations. The case, from December 2012, is In Re Das, and revolves around a will made for Mr. Das by his lawyer. The will was somewhat complicated, and problems arose with an account from RBC Dominion Securities worth about $1Million.

There were two problems with this account, and the different ways the court dealt with them are good examples of what a court will fix and what it will not fix.

The first problem was that there was a typo in the account number of the investment in the will. The court looked at all the evidence and agreed that it was  just a typo. The court said it was pretty clear that Mr. Das meant to mention the correct account number, so the will could be relied upon as if the proper account number had been included.

The second problem was something much more troublesome. Mr. Das specifically excluded the account from the distribution of certain assets of his estate to his wife and daughter. But then he wasn't clear about what was to happen to the account. The way the will was worded, the account might have been intended for charities mentioned in the will, his wife or his daughter in some proportion.

The court said that based on the wording of the will, as well as outside evidence, it was impossible to tell what Mr. Das had intended to do with that account. The court said that it could only speculate, and that they did not believe that speculation was their role. In the end, they declared that the investment account was not covered by the will and therefore must be distributed according to the intestate laws of the province.

The case makes it clear that the responsibility lies on each of us to make sure that our intentions are properly expressed in our wills. The courts will help out when they can, but they've said they won't simply make things up where the evidence doesn't exist.

To read more about this case, click here to read a blog post by lawyer Chris Staples.

My personal advice to those of you who are making will is this. If possible, find a lawyer who specializes only in wills and estates. If no such lawyer is available in your area and there isn't a major centre nearby with that expertise available, try to find a lawyer who you know has done a good number of wills. Secondly, this is no time to cheap out. Sure, you might save a couple of hundred dollars, but the legal costs your estate pays later could be in the tens of thousands.

Pension benefits on death - who is a spouse?

The Ontario Court of Appeal has recently dealt with the question of who is a spouse of a man who died while married to one woman but living common law with another woman, for the purposes of figuring out who should get his pension benefits. For those of you who think it's "easier" not to get divorced and just live with someone else while you're still married, take a lesson from this case and realize what a mess you're leaving behind. It took many months, thousands of dollars and an appeal to the higher court before the question was answered.

The court decided that both the married wife and the common law wife fit the definition of spouse under the law, but found there were reasons to disqualify both of them.

Click here to read a report on the case of Carrigan v. Carrigan from Ontario lawyer Chris Staples.

When can you have two spouses?

In this post, Chris Staples talks about a new case (Blair v. Cooke) from the Ontario Superior Court which has said that for the purposes of making a claim for support against the estate of a deceased, the deceased could have two spouses at the same time. This is because more than one person at a time can fit the definition of "spouse" as set out in the Ontario law. Though most of us would logically think that we have only one spouse at a time, this case shows that the law may not agree with you. To read Mr. Staples' comments and the case itself, click here.