Just as no two people are alike, no two Wills should be exactly alike. Everyone’s situation is unique as are everyone’s estate planning goals. A one-size-fits-all or ‘cookie cutter’ approach is not appropriate for estate planning.
Here are some of the common pitfalls that we have seen with type of approach.
Were multiple Wills considered (or even possible) when the Will was drafted?
• For several years now, it has been possible for an individual to have more than one valid Will. Why? One reason is to save estate administration tax (commonly referred to as probate fees). If a person owns shares in a private corporation or owns other significant unregistered assets such artwork, collections, jewellery, etc., just by having more than one Will estate administration tax could be much less.
If the words per stirpes appear in a Will, is it used properly?
• If not, an expensive and unnecessary court application may be necessary to clear up confusion as to who is to inherit or the distribution of the estate may be not what was intended. For example, the phrase ‘to my children in equal shares per stirpes’ is an inherent contradiction because per stirpes (Latin for by branch or by stock) implies that the inheritance will not necessarily stop at the first level of descendants (children) but could include everyone down the family tree (all living children, grandchildren, great-grandchildren, etc.) In our experience, this is rarely what a client wants. Most expect that a grandchild will inherit only if his or her parent has predeceased.
Could a child’s spouse inherit instead of grandchildren?
• If Cassie’s Will names her son, Jack, to receive an inheritance but Jack dies first and Cassie’s Will does not say who gets Jack’s inheritance (a ‘gift-over’), Jack’s spouse (not his kids) will receive Jack’s inheritance. This rule applies as long as the deceased beneficiary is a child, grandchild, brother or sister of the deceased and the Will does not specify a gift-over. A well-drafted Will can easily avoid this problem.
Are there trusts in the Will and, if so, are they effective and properly drafted?
• For example, a direction to an executor to hold funds until a child is 21 or some later age is generally ineffective as the rule in a case known as Saunders v. Vautier allows the trust to be ‘busted’ when the trust beneficiary turns 18. This rule applies if there is no giftover (no alternate beneficiary named).
If you want to avoid the ‘cookie cutter’ approach, make an appointment to meet with one of our lawyers today. We will review your unique situation and offer suggestions for achieving your specific estate planning goals.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
