Updating Your WillOct 3 2022
We recommend you periodically review your Will to confirm it continues to accord with your wishes. A number of significant changes to your life circumstances may warrant updating your estate plan.
After March 31, 2014
If you have an existing Will from before your marriage or common law relationship, you should consider revising it. Your Will continues to be valid and it may no longer reflect your current wishes. Furthermore, if you do not adequately provide for your spouse (this includes a common law spouse), they have the right to challenge your Will in court. If successful, the court may revise your Will.
Prior to March 31, 2014
The law formerly provided that your Will was automatically revoked by marriage. If you were married before March 31, 2014 and have not updated your Will from prior to the marriage, your existing Will is actually revoked and you will need to execute a new one.
Divorce or Separation
If you go through a divorce or separation, or your common law relationship ends, any gift in your Will to your former spouse is automatically revoked. An appointment of your former spouse as executor is also revoked. If this is not your intention, it is important to ensure this is documented. We recommend reviewing your Will and updating it if necessary.
You will likely wish to update your Will upon having your first child. In addition to providing for your child, consider who you would like to appoint as a guardian.
On having another child, we recommend reviewing your Will. Depending on the language, you may wish to update it again. Some Wills name each child and others use general language. If yours is the latter, additional children may already be contemplated in your estate plan.
Death of a Beneficiary
A good time to review your Will is following the death of one of your beneficiaries. Your Will may already contemplate who the deceased’s share will pass to, but this is an opportunity to ensure your Will continues to reflect your wishes.
Executor, Trustee or Guardian Becomes Incapable or Dies
If your executor or a trustee of a trust in your Will passes away or becomes unable to perform the duties, it is important to ensure you appoint someone who is capable and willing to administer your estate or the trust.
If the person you appointed as guardian becomes incapable or passes away, we recommend you update your estate plan to ensure your minor children are cared for.
Executor or Trustee Becomes a Non-Resident of Canada
If your executor or a trustee of a trust in your Will resides in a different country, your estate may be subject to taxation in that jurisdiction. Therefore, if either your executor or trustee moves away, it is prudent to update your Will to avoid potential negative tax consequences, as well as practical difficulties administering your estate.
Moving to or From British Columbia
If you move to a different province or country, you should seek legal advice in the new jurisdiction. Each province has its own laws governing Wills and estates, and you may need to execute a new Will to ensure it is valid in your new place of residence.
Acquiring or Selling Assets
Acquiring or selling assets may or may not warrant updating your Will. Wills often do not specify your various assets, which allows flexibility for changes to your estate. However, if the asset is explicitly addressed, you may wish to revise your Will.
Acquisition of certain assets may require contemplation in your Will. For example, if you have recently subscribed to an RESP, it is prudent to appoint a replacement subscriber in your Will. If you recently acquired or incorporated a business, you may also wish to review your estate plan.
RDM has lawyers who can provide legal guidance on preparing wills and trust documents to protect your wishes for your assets and your family. We also have lawyers who are experienced at navigating the court system if you find yourself in a situation where there are questions over the validity of a will or there is disagreement about how assets are meant to be treated.