Lawyers are often asked by clients how often should they review their Will. Most lawyers would provide a very short and simple answer such as every 3 to 5 years, or when there is a significant change in your life. Though these are fine guidelines, they do not provide much in terms of guidance. When reviewing your Will, consider asking yourself the following questions:
1) Where is your Will?
If you have tried to locate your Will and are not able to find it, you should consider getting a new Will made as soon as possible. In order to deal with your estate upon your death, your executor will need the original Will. If you are not able to find your Will, chances are that your executors will not be able to find it either. If you had discussed the content of your Will with your loved ones, they may be expecting certain things. However, if your original will cannot be found, it is likely that your estate will be treated as though you had no Will. In Manitoba, the Intestate Successions Act sets out rules which determine who would benefit from your estate if you have no Will. These rules are rigid and will not take into account what your past intentions.
Assuming you have located your Will, what now?
2) Consider your executors
Your executor should be someone who is responsible, competent, trustworthy and willing to follow the instructions set out in your Will. It is the executor’s job to gather up your estate assets, pays the debts of the estate, and distribute whatever is left according to the instructions in the Will. Though not absolutely required, there may be benefits to naming someone who lives in the same city, has experience managing money and dealing with financial institutions, is not afraid to ask for professional help when needed, has the patience to deal with requests from beneficiaries, financial institutions and government institutions, is organized and is capable of keeping records.
3) Consider your assets
How have your assets changed since you last did your Will? If you have experienced a significant increase or decrease in personal wealth, it may affect how and who you wish to benefit in your will. In the case of substantial windfalls, a lawyer would be able to give you guidance on the income tax consequences relating to your estate plan. If specific assets are mentioned in your will, you should consider whether they are still owned by you and whether you still wish to plan your estate in the same manner. Keep in mind that some assets grow in value over time, such as real estate, and others decrease as you use them, such as retirement savings.
4) Consider your relationships
How have your relationships changed since you last did your will? Have you gotten married, separated, divorced? Has your spouse passed away? These events will significantly affect your estate plan. Did you know that in Manitoba marriage revokes a will that you would have made before you got married? Did you know that in Manitoba, a divorce has the effect of removing the divorced spouse as an executor and beneficiary of a Will you would have made prior to the divorce? Other relationship may have changed as well. Maybe your children were very young when you last did your Will and they are not responsible adults. Maybe one of your beneficiaries have become disabled or suffer from other societal problems such as substance abuse or addiction, is a victim of financial abuse, or is simply no good with money. Your Will can be used as a tool to protect these beneficiaries and their inheritances, provided that you receive appropriate legal advice on how to set it up.
5) Consider the passage of time changes in the law
Laws change all the time. Did you know that a lawyer who specializes in Estate Planning need to be aware of more than 20 different laws which may affect a simple estate plan? If your situation is more complex, then even more laws will need to be considered. Your lawyer needs to be aware of changes to each of these laws and should be able to advise you as to how these changes will affect your estate plan.
6) Consider your health
No one can predict death, however, if your health is failing, you should review your Will more often. Keep in mind that your Will can only be changed is you still have the mental capacity required to change it. Determining mental capacity to make a Will is a legal test which should be done with the help of a lawyer. Though a medical opinion of capacity is useful in applying the legal test, there are many circumstances where an individual may not be able to take care of him or herself, but is still capable of making a Will or a Power of Attorney.
After having considered the above factors, you should have a better idea of whether or not you need to change your Will. If you know that changes are needed, your lawyer should be able to discuss your situation with you and make the appropriate changes to your Will. If you are not sure whether changes are required, it’s not a bad idea to have your estate plan reviewed by your lawyer. Though your lawyer may charge for the consultation, he or she will not get you to change your Will if it still reflects your intentions. Lastly, if your Will still does what you intend, then you should be comfortable putting it back in a secure place until your next review.
DISCLAIMER: This article is presented for informational purposes only. The views expressed are solely the author(s)’ and should not be attributed to any other party, including Taylor McCaffrey LLP. While care is taken to ensure accuracy, before relying upon the information in this article you should seek and be guided by legal advice based on your specific circumstances. The information in this article does not constitute legal advice or solicitation and does not create a solicitor-client relationship. Any unsolicited information sent to the author(s) cannot be considered to be solicitor-client privileged.
If you would like legal advice, kindly contact the author(s) directly or the firm's Chief Operating Officer at pknapp@tmlawyers.com, or 204.988.0356.
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Solange Buissé
Partnersbuisse@tmlawyers.com
Solange practices Estate Planning and Estate Administration law at Taylor McCaffrey LLP and is well respected for her years of experience in this area.