• Just because your Will is legally valid, doesn't mean it is effective.
  • An effective Will is one that allows your wishes to be carried out as stipulated. If your loved ones are taken by surprise by the contents of your Will, it can set off estate litigation.
  • Remember that when it comes to Wills, equal is not always fair. Talk to your next of kin about what's in your Will, and make sure they know what to expect.

Whether you realize it or not, your Last Will & Testament is one of the most important legal documents you will ever draft in your life. And that’s true no matter where you are in life right now — regardless of your age or how many assets you have. 

Your Last Will & Testament is the place for you to record your final wishes and desires in this life. For some people, it is likely the last written communication that they will leave behind for their loved ones to read. That’s why it’s a huge problem that here in Canada, half of us still don’t have a Will prepared.

Having a Will isn’t always enough

Perhaps you fall into the half that does have a Will ready to go. If so, you might be feeling pretty chuffed right about now: when it comes to Aging & End of Life Planning, you’ve got all your ducks in a row. Now all that’s left to do is for you to just kick back and relax, until such a time that your wishes can be carried out as written and you can go peacefully into that good night. Right? 

Well, not so fast. Before you decide that you’re all done with the Planning process, it’s important to understand that having a valid Will and having an effective Will are two different things. 

Here’s what I mean by that: Just because your Will is legally valid doesn’t mean that it will be used the way you’re intending it to be. That question depends on how you went about drafting your Will in the first place. 

When a Will reading turns ugly

Before starting Viive Planning, I spent a decade working as an estate litigation clerk. So believe me when I tell you: even the most loving families can be torn apart by a poorly drafted Will. 

For starters, a lot of Wills are drafted years before the death of the person they belong to. A lot can change in that time, and decisions that would have made sense to your family ten years ago might be a bit harder to swallow today.

But there’s more to it than that. No matter how old they are, Wills can be very telling documents. They reveal a lot about how a person viewed their relationships, as well as about their core values and priorities. 

Complicating things even more is the fact that more often than not, the children of a deceased parent only learn what’s in that parent’s Will for the first time after their death. This, unfortunately, is when things can really take a turn for the worse. 

Equal is not always fair

There’s a phrase that I like to use when I’m speaking to my clients:

“Fair is not always equal, and equal is not always fair.”

Just because you have three children doesn’t mean that it is fair to divvy up your estate into thirds and leave it at that. Maybe one of your daughters now has a few kids of her own, and is struggling to get by much more than her childless siblings are. To her, this money will make a much bigger difference.

Just because you remarried after the death of your first husband doesn’t mean it’s fair to leave everything to him. Your two children from your first marriage are probably still expecting to inherit part of your estate, even if your second husband currently plays a bigger role in your life than they do. 

Different circumstances call for different courses of action. At the end of the day, you’re entitled to do with your assets however you wish — but your loved ones are also entitled to respond to your decisions however they wish. And if they’re taken by unpleasant surprise, things can turn nasty, fast. 

What makes a Will “unfair”?

I’ve seen family members duke it out in court over all kinds of things. Here are just a few: 

  • Siblings being treated differently and receiving unequal shares of their parent’s estate.
  • A new, young spouse inheriting all of the assets that somebody accrued over the course of a previous marriage, while the children from that earlier union receive nothing. 
  • Children from a second marriage being treated differently than the children of a first marriage, and vice versa.
  • A loved one leaving their entire estate to charity, and nothing to their family — because they believe that their family is “established enough on their own.”

But ultimately, when it comes to estate litigation, truly anything could be the straw that breaks the camel’s back. Seeing a loved one’s Will for the first time after they die can take any happy, easy-going family and turn them into selfish, controlling beings. Grief & greed are a destructive cocktail of emotions.

Just because you have a Will, and it’s valid in a legal sense, does not mean that it is an effective Will. An effective Will is one where your wishes are carried out as stipulated in the document that you swore years before. If people don’t understand your wishes, and you’re no longer around to explain them, this is where estate litigation can commence.

Ensuring your Will is effective

It goes without saying that you need to make sure that the document that you had drafted, whether by a lawyer or by using an online program like Epilogue, is of extremely high quality. 

You’ve got lots of options for how you want to draft your Will. Yes, here in Ontario, holograph Wills (Wills that are entirely handwritten) are legally valid. You can also use a Will kit (a pre-drafted, fill-in-the-blank document) to record your final wishes. At the end of the day, I’m a firm believer that any Will is better than no Will. 

But at the same time, as I said previously, this is likely the most important legal document you will ever have. If your Will is poorly drafted, your loved ones will have to live with the consequences of that. So why not invest a little bit of money into it, to make sure that it ends up being used the way you intended? A little extra effort on your part can help ensure not only that your wishes are carried out as stipulated, but also that it’s difficult for your family members to sue each other over your estate. 

Final thoughts

I’m sure a lot of lawyers out there might disagree, but my hope is that one day, we won’t need estate litigators anymore. 

Wouldn’t it be great if families weren’t wasting their time and money suing each other over petty grievances? Wouldn’t it be great if we could all just openly and honestly communicate, respect each other‘s differences, and keep families together instead of battling it out in court?

To draft an effective Will, there’s more to it than asking a lawyer to draft up a bunch of legalese for you. That’s not going to be much use to laypeople (i.e. your children or loved ones), who aren’t going to understand the emotions and reasoning behind the contents of that document. You owe it to yourself, your children, your family, and your loved ones to explain those choices before you die. 

I get it: We, as a society, do not like to talk about death and money. But you don’t have to get into all of the nitty-gritty details in order to make a big difference for your loved ones. 

One thing that comes up a lot with my clients, for example, is that they don’t like to tell anybody (even their children) exactly how much money is in their estate. You know what? That’s fine. You don’t need to tell your kids the dollar amount they’ll be receiving after you pass away. Just tell them where the money is and what proportion of it is going where. You can leave out the full value if that makes you more comfortable. 

If discomfort is your biggest barrier to having this conversation, I also strongly recommend that you take advantage of technology. We live in a world where (for better or worse) it’s easier than ever to avoid having face-to-face discussions with people. If the idea of sitting your kids down for this conversation is too overwhelming, send them an email. Sure, it would be best if everyone could sit down at a dining room table with a cup of tea or a bottle of wine and have a nice conversation about your wishes, but every family is different, and at the end of the day, something is better than nothing

You’re not going to change the way you communicate overnight. Even something as simple as sending a copy of your Last Will and Testament over email to your future Executor and beneficiaries, along with a brief explanation of your wishes, is a great way to ensure that you not only have a valid Will but an effective Will. (It’s also worth sending this to anybody who you think may assume that they’ll be a beneficiary of your estate, who actually will not be.) 

“Good communication is the bridge between confusion and clarity.” 
— Nat Turner

Having a Will is an important first step. But it’s not enough on its own. A Will without any context or explanation risks pouring fuel on the fire of your loved ones’ grief. 

Do them a favour: and have a conversation about your wishes & desires before it’s too late.

Not sure where to start? We’re here for you

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About the Author

Mallory McGrath is the Founder & CEO of Viive Planning. Mallory is a wife, daughter, mother, sister, and friend. She advocates for Aging & End of Life Planning to help families to create open lines of communication and avoid tensions as they all continue on their journeys through life.

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