Whether you realize it or not, having a valid Will is one of the most important legal documents you will ever draft in your life (and it’s not just an older generation's thing to do.)
Your Last Will & Testament describes your last wishes and desires, and for some people, it is likely the last written communication that they will leave behind for their loved ones to read.
But having a valid Will isn’t necessarily the same thing as having an effective Will.
Although a Will is often drafted many years before a person’s death, it can be a very telling document. More often than not (and this is a habit that I hope we can all start to break), children of a deceased parent see their parent’s Will for the first time after their death. And this, unfortunately, is when things can take a turn for the worst.
When a Will reading turns ugly
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 treat them all equally with regards to the distribution of your assets after your death. Just because you remarried after your first husband died doesn’t mean you should leave everything to him and leave nothing to your two children from your first marriage.
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. I always like to say that grief, greed, and jealousy make an unbeatable cocktail of emotions.
There are many examples of shocking news family members might hear at the Will reading of a loved one that can cause controversy, such as:
- Siblings being treated differently and receiving unequal amounts of shares of their parent’s estate.
- A new, young spouse inheriting all of the assets that a previous mother and father pair acquired over their lifetime and the children from that previous union, receiving nothing.
- Children from a second marriage being treated differently from the children of a first marriage, and vice versa.
- A loved one feeling very philanthropic and leaving their entire estate to a charity and leaving nothing to their family because they believe that their family is “established enough on their own.”
Just because you have a Will, and it’s valid from 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.
How to ensure your Will is as effective as possible
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 drafting program, is extremely high-quality. Yes, holograph Wills are acceptable in Ontario, as well as buying and utilizing a Will-kit and writing your own Will. 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. So, why not invest a little bit of money into it and make sure that it is of the best quality and drafted to include not just your wishes and desires for your assets, but also to ensure that it’s difficult for people (aka. your grieving family members) to litigate the validity of the Will.
I’m sure a lot of lawyers out there might disagree, but wouldn’t it be great if estate litigators didn’t have a job? Wouldn’t it be great if families weren’t wasting their loved one’s money on estate litigation? Wouldn’t it be great if we could all just openly, and honestly communicate, respect each other‘s differences and intricacies, and keep families together instead of battling in court?
To have an effective Will you can’t just leave it to the lawyers to draft up a bunch of legal words in a document. They’re hard to read. A lay person (aka. your children or loved ones) isn’t going to understand what the emotional choice was behind what is on that piece of paper. You owe it to yourself, your children, your family and loved ones to explain your choices before you die.
We as a Canadian society do not like to talk about death and money.
I always tell my clients that they don’t have to say how much money they have. As a rule, I always use a total asset value of $100,000 in order to explain someone’s estate. You can explain to your children and loved ones where the money is, how it will be divided, and leave out the full value. We live in an age of technology where, if avoidance of the topic is your main priority, this can be handled over 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. (*Plus, at the writing of this blog, we are in lockdown in Ontario, so please stay home and have this conversation over video, phone or email!*) 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 (and any people who probably assume they would be a beneficiary but are not going to be) and explaining your wishes, is a great way to ensure that you not only have a valid Will but an effective Will.
“Good communication is the bridge between confusion and clarity.” — Nat Turner
Mr. Turner is right. Leaving behind a Will without any explanation to your family and loved ones will in most cases cause confusion and a lack of clarity. Do them a favour and have a conversation about your wishes & desires before it’s too late.