How often should I update my Will?
May 17, 2017
After clients have finally come into the office and had a Will prepared, their next question is frequently “How often do I have to update the Will?”
I’m happy to see clients as often as they want. But practically speaking, I tell clients that they should review their documents on their own every couple of years to make sure the Wills they signed still reflect their wishes. Beyond that regular review, however, clients should revisit their Wills upon any significant life changes (e.g. deaths, marriages, births) or asset changes (e.g. inheritances). Again, the goal is to ensure that the instructions in the Wills match what the clients would actually like to have happen to their assets on their death.
Sometimes, the need to sign a new Will is obvious to a client. For example, the client has had a falling out with a sister to whom he left a significant gift. But there are more subtle provisions in a Will that may need to be reconsidered as time passes. When a client’s child was a newborn, he directed in his Will that a trust is to be created for that child that lasts until the child turns 25. Is that still an appropriate age? Fifteen years later, after the child has now grown up a little bit, does the client think that his child could handle an inheritance turned over to them at age 25? Or the client may have appointed a friend to be the guardian of the child. Does that friend now have several kids of his own? Could he accommodate the client’s child as well? Does the client approve of his friend’s parenting style?
It’s also very important for a client to keep in mind the implication of his marriage, separation, or divorce on a Will. In Ontario, a marriage has the effect of automatically revoking the client’s Will unless the client’s surviving spouse opts out of the automatic revocation (often unlikely if the Will doesn’t leave at least a substantial portion of the estate to the client’s spouse), or the Will contains what’s known as a “contemplation of marriage” clause. Accordingly, if a client made a Will when he was single, the client should make an appointment with his lawyer to revisit that Will after he gets engaged, either because the client wants to include his spouse in the division of his assets on his death, or because the client doesn’t want to include his spouse (which, as an aside, is a decision that introduces other possible issues about which the drafting lawyer should advise the client).
In the event of a client’s divorce, the legislation in Ontario provides that the now ex-spouse is deemed to have predeceased the client and will thus receive no benefit under the client’s Will, and will not be able to act as executor. It’s important to note, however, that this does not apply to any assets for which the client may have designated his ex-spouse as beneficiary (e.g. TFSA’s, RRSP’S, life insurance policies), nor does it necessarily apply to property the client held jointly with his ex-spouse. These assets could thus pass automatically to the client’s ex-spouse on the client’s death unless the client do something about it, ideally in consultation with his lawyer.
Another important point is what does not happen in the event of a married client’s separation. If the client is only separated from his married spouse and not divorced, the automatic pre-deceasing provision mentioned above does not apply in Ontario. Should the client die without having changed his Will, the provision for his spouse may thus still apply notwithstanding the separation. This can lead to an unexpected result from the perspective of the client and, often, litigation after the client’s death by a disappointed beneficiary.
The bottom line? If you’re going to go through the trouble of preparing a Will (which you definitely should), you should also go through the trouble of reviewing it regularly to ensure that it still does what you want it to do