The heart of the will is ‘who gets what’.
A very common form of “simple” will is ‘if they do not pre-decease me, everything to my spouse’. However, there are several very important planning considerations often over-looked in these situations.
Spouses have ‘mirror wills’ when there current wills are identical. Usually mirror wills contain these ‘everything to my spouse’ bequests.
Mutual wills are much rarer and harder to implement. Spouses have mutual wills if they have agreed not to change their wills after the first spouse dies. This is a restriction on the normal testamentary freedom to make new wills and dispose of one’s will as one wishes. Mutual wills, therefore, involve a contractual commitment that restricts testamentary freedom.
Many people believe that they have mutual wills when they do not.
It is particularly important in ‘blended’ family situations, if you want you’re your spouse to be protected during their life, but your children from a prior relationship to benefit from your assets after your spouse passes away, to consider whether you want mutual wills, or to use other techniques such as ‘life interests/spousal trusts’ or the like (discussed above).
If both spouses die within a very short period of time (for instance, from a car accident, house fire, or other calamity), it is preferable to have the will of the first to die not ‘pour over’ their estate to the second die. If it did, there would be a requirement for double probate of all of the assets of the first to die. Instead, it is very common to include a ‘common disaster’ clause that provides that if the spouses die within a 10-30 day period, then the will of the first is read as if the second spouse had pre-deceased.
When spouses have mirror wills, it is important to ensure that bequests are not doubled, and loans and gifts are properly equalized.
When there is more than one beneficiary, there are two primary strategies for setting out who gets what from your estate:
- The ‘pool then split’ strategy, which involves pooling all assets, paying all expenses and all specific bequests, and then dividing the monetary value of the balance (the residue) among the beneficiaries in ‘shares’; or
- The ‘named gift’ approach, which involves giving specific assets (or the proceeds from specific assets) to specific beneficiaries.
- “give my daughter, Jane, my RRSP, and give my son John, my house” is a ‘named gift’ or ‘specific bequest’ type of disposition.
- “sell my assets, pay my debts, and then divide the residue equally between my daughter Jane and my son John” is a ‘pool then split’ approach.
Generally, the ‘pool then split’ approach has a much higher chance of being ‘fair’ or ‘in keeping’ with your original intentions, because the ‘named gift’ approach often fails to deal with changes in value over time (assets that have gone up in value, or been depleted) and who pays what debts and expenses (such as taxes and executor fees). For instance, in the example above, if you withdrew the RRSP to live, and the house went up in value, Jane may receive nothing and John a very valuable asset.
Complex legacies can really complicate the process of applying for probate, and administration of the estate.
We understand the desire to leave a legacy directly to some children, especially grandchildren. However, gifts to minors (ie. Someone who is under 18 at the time of death of the testator) make a) probate, and b) estate administration considerably more difficult and expensive. The Office of the Children’s Lawyer must be notified of any gift to a minor over $10,000, and lengthy trusts can impose on the trustee (often the executor) long term duties to manage money for the children.
Therefore, for modest gifts, in order to reduce cost and hassle you should consider gifts that take the form of contributions to RESPS or directly to a parent of the child.
If you want to make a gift to a minor, please see the discussion above about trusts and the requirements for properly drafted trusts.
Bequests to charities are a fundamental part of estate planning. We recommend them. However, some key points to consider include:
- Make sure that you identify the charity properly; use the full proper legal name;
- Make the gift clear and simple;
- Get advice to make the gift tax efficient;
- Consider making gifts before you die – that way you can be certain that they are made right, and you get to see your donation in action.
A lot can happen between the time you make your will and when you die. In particular, some of your beneficiaries may pre-decease you. Do not assume that everyone younger than you will outlive you. It is very important to structure your legacies in a manner that provides clearly, for all aspects of the estate, what happens if any beneficiary pre-deceases you. If you do not, you risk creating a partial intestacy for your estate. This rule applies to trusts, which require a gift over to address the beneficiary pre-deceasing the testator, and, if the beneficiary dies after the trust is settled.