The reason you may need to change your Will and Powers of Attorney vary. This article outlines the main areas and situations which prompt a need to change one’s Will and/or Powers of Attorneys.
The bottom line is that if any change takes place to the maker of the Will, their Executors, Attorneys (including alternates), beneficiaries or assets, they should review their Will and test whether if they passed away the next day their Will would still be appropriate, or if they became incompetent would the proper attorneys be in place. Those thoughts should be kept in mind even if a change is not one I have discussed below.
It is also important that one keeps up to date what their burial instructions are, as well as provide information about their assets and other matters.
For my clients, please review the forms in your Will Manual that I have provided to you, or go to my website for copies of these forms.
Major Life Changes
• Have you separated?
• Have you divorced?
• Have you remarried?
• Has your spouse died?
• Are there children or grandchildren you now would want included or not included in the Will?
When a person marries their Will is automatically revoked unless the Will is made in contemplation of marriage. Therefore if one is remarrying and has a Will where the children of the first marriage inherit the estate, this will not happen on remarriage unless a new Will is signed. This is because when one dies without a Will (or in this case revoked), the spouse obtains the first $250,000 and a percentage thereafter, and the children receive a percentage. The new spouse also has the first right to be the estate trustee. A new Will is therefore needed. The new Will can be signed before the marriage if it specifically states the Will is made in contemplation of the upcoming marriage.
Powers of Attorney are not revoked on marriage. New Powers of Attorney may be needed to name the new spouse as a co-attorney or as sole attorney.
If there is a second marriage it is also highly advisable to discuss with a lawyer the possible need for a marriage contract especially if one is bringing a house into the relationship. See my articles about Marriage Contracts and Cohabitation Agreements.
Cohabitation with a New Partner
If one cohabits with a new partner it is strongly advisable to discuss a cohabitation agreement. See my article on Marriage Contracts/ Cohabitation Agreements. But also one’s Will and Powers of Attorney should be reviewed.
A divorce automatically revokes any gift given to the divorced spouse and disallows the divorce spouse to act as an estate trustee. That revocation is probably what one intended but not in all cases so perhaps a new Will is not needed on divorce. But the Powers of Attorney are still valid on divorce and therefore the former spouse will still be the attorney which is not what one probably intends on divorce. New Powers of Attorney are therefore needed.
Separation does not change the validity of the Will or Powers of Attorney. However, a new Will and Powers of Attorney are likely needed because one probably does not want the separated spouse to receive as much as the Will or dying without a Will would give. Nor is it likely that the separated spouse would still be wanted to administer the estate.
Signing of a Separation Agreement
Though most separation agreements will state if a person dies without a Will the separated spouse cannot inherit, nor can they administer the estate. If there is an existing Will, then the separated spouse takes under the Will. A new Will is therefore advisable.
Death of a Spouse
Almost all Wills will deal with the death of a spouse and have an alternate Executor stated as well as alternate beneficiaries. There is no requirement to redo a Will or the Powers of Attorney when the first spouse dies. However there is a practical reason to do new Powers of Attorney. If the spouse’s name is left in the documents the alternate Attorneys will always have to prove the death of the spouse by way of producing a death certificate, so to prove they have authority to act as an alternate. Some people also feel psychologically they would like a Will that clearly states that their children are the estate trustees and beneficiaries, and does not have the deceased spouse mentioned in the Will.
Children and Grandchildren Changes
Birth of Children or Grandchildren
If the Will was properly drafted the birth of children or grandchildren should not necessitate having a new Will drafted. Sometimes however children and grandchildren are listed in a Will by name, and future children and grandchildren are not included. Therefore the birth of a child or grandchild may necessitate the need for a new Will. There also may be a child outside of marriage who one wants to ensure is included as a beneficiary. A new Will may be required, though again this may have already been addressed in the original Will.
Minor children are now at least of the age of majority (18)
When the original Will was drafted the children may have been too young to be alternate Executors and so other family members such as a brother or sister were named. Once the children are older (over 21 or 25) one should do a new Will to make these adult children the estate trustees and attorneys or alternate attorneys rather than having other family members be the Executors and attorneys.
Executors and Attorneys
• Have any executors or attorneys died?
• Are any executors or attorneys mentally incapable or unable to administer your estate?
• Do you still want the appointed executors and attorneys or alternates administering the estate or looking after you?
• Are your children now over 18 years old and capable to be estate trustees and attorneys?
Executor and /or Attorneys have moved away
If your Executor or Attorney has moved away especially to the United States or non-Commonwealth country you should appoint a new Executor or Power of Attorney. An Executor/Attorney living outside of Canada or another commonwealth country would have to post a bond (an additional step in the probate process), and there may also be tax issues if they are not in Canada. For practicality reasons you should appoint an Executor/Attorney who is local to you.
Death of an Executor, Attorney or Alternates
As the original Will should provide for an alternate Executor, the death of an Executor or alternate Executor would not necessitate an immediate change to the Will, but a new Will is advisable so there is still a primary and alternative Executor and Attorney alive.
Executor, Attorney or alternates become incapacitated or have indicated they do not want to act
Again as the original Will should provide for alternates on the incapacity of an Executor, or refusal to act, this circumstance would not necessitate an immediate need to change the Will, but again a new Will is advisable so there is still a primary and alternative Executor and Attorney alive. Also unlike death which is evident, incapacity is not as easy to prove so it is best to do a new Will and Powers of Attorney removing the incapacitated person so there is no question they will not act, nor a need to prove the person first named is incapacitated.
Executor and/or Attorney no longer appropriate
An Executor or Attorney named many years ago may still be alive but no longer be the appropriate person to administer the estate or be the attorney for a variety of reasons – for example their age, or their relationship to the donor or the beneficiaries has changed.
• Have any beneficiaries died?
• Have you had a falling out with any beneficiary and want to withdraw that bequest?
• Do you want to increase a specific bequest?
• Do you want to change the age when a minor receives the bequest?
• Are any beneficiaries incompetent (therefore discretionary trust)?
Death of a Beneficiary
The death of a beneficiary would not necessitate an immediate need to change the Will because the Will would have contemplated the beneficiary predeceasing the maker of the Will. However perhaps the overall allocation of the assets to beneficiaries may want to be changed so the Will should be reviewed.
A Beneficiary is no longer appropriate
A beneficiary named many years ago may still be alive but no longer be an appropriate person to receive a benefit from the estate because their relationship to the maker of the Will has changed, or even ceased, or perhaps they no longer need the bequest.
• Are the custodians still the proper persons to look after the children?
• Are custodians no longer needed?
Change of Status of a Custodian
Since the original Will was done, there may have been a falling out with the custodian or there may be a more appropriate person to be the custodian. This alone would probably not necessitate a new Will but perhaps a simple statement or codicil may be required as per the article “Changing Your Will” .
• Are any assets specifically bequeathed in the Will no longer in existence?
• Has the total value of the estate changed necessitating a change to the bequests?
• Has the value and nature of the estate increased to an amount that a testamentary trust or other estate planning technique be beneficial?
The Value of Your Estate has Materially Changed
When one signs their first Will it is based upon their assets at the time, and bequests are made accordingly. But if the value of one’s estate changes materially those bequests may no longer be appropriate, whether specific amounts or percentages. So if one’s net worth is quite different from when their first Will was drawn, one should look at the bequest amounts and see if they are still reasonable based on the new net worth.
Specific Assets in the Will no Longer in Existence
An asset specifically bequeathed may no longer exist either because it was sold, lost, stolen or given away. This may require a change in the Will to ensure the person who was to receive this original bequest receives something in its place. Assets have been inherited
Aside from the fact that the value of one’s estate may greatly increase when one inherits money, one may feel obligated to have some of that inherited money or specific asset go to a new beneficiary, perhaps someone who the asset was inherited from would have wanted as an alternate recipient. This may require a change in the Will.
• Was the Will done before 1986 and therefore needs a Family Law Act clause to protect inheritances in case of separation of a beneficiary?
• If there was a second marriage will the amount bequeathed to the spouse be greater that the equalization amount? Is a marriage contract needed?
• If the Will was done before 1979, are there any children born outside of wedlock that should or should not be in the Will?
• Was the Power of Attorney done before 1994 and therefore you need a new Continuing Power of Attorney for Property and a Power of Attorney for Personal Care?
Will Done Prior to 1986
In 1986 the Family Law Act came into effect. It states that in a Will one can say that the interest from an inheritance need not be shared with one’s spouse on separation. This situation alone in my opinion would not necessitate redoing a Will, but if the Will was done before 1986, I would assume there have been some other changes. To be really careful, a new Will should be done.
Powers of Attorney Done Prior to 1994
In 1994 the law changed to allow for two types of Powers of Attorney; one is called the “Continuing Power of Attorney for Property” and the other is the “Personal Care Power of Attorney”.
The “Continuing Power of Attorney for Property” deals with financial matters. It is a little more sophisticated than the previous General Power of Attorney and allows for gifting and charitable giving under certain circumstances.
The “Personal Care Power of Attorney” deals with health issues and includes a life support clause. This life support clause can state the preference of the individual as to whether they do or do not wish to be kept on a life support system if there was no reasonable prospect of reversing a major brain injury. The “Personal Care Power of Attorney” gives the right person the authority to make health decisions if the donor cannot give instructions themselves. Most nursing homes require Powers of Attorney. If one has the old General Power of Attorney it is strongly recommended that they execute the two new Powers of Attorney.