You might be thinking, “How can I make sure my final wishes will be respected?” One option is not to wait until your death to distribute your possessions, or to use alternate means of distribution. If assets do not pass through someone’s estate, there is nothing to contest. As such, there are steps you can take to avoid will variation applications.
- Holding assets jointly with the right of survivorship. Jointly held assets can pass to the survivor. However, when holding an asset jointly with a child, there needs to be a clear intention to gift the asset upon death—otherwise, the asset may be seen to be held in trust by the child for the parent and become part of their estate distribution. Intention can be most clearly indicated by preparing a document (with the help of a lawyer) like a declaration of trust that states that the asset is meant to pass solely to the joint tenant upon the first death.
- Holding assets in an “inter-vivos trust.” This type of trust does not die with the individual who transfers assets into the trust, nor does it pass through their estate. The trust may continue after their death or have instructions for the ultimate distribution.
- Naming beneficiaries for registered plans and insurance policies. For registered accounts, like registered retirement savings plans (RRSPs), registered retirement income funds (RRIFs) and tax-free savings accounts (TFSAs), you can name beneficiaries, who will receive the assets in these accounts without having to go through probate (the legal process that confirms a will). Insurance policies that are payable to individuals instead of to the estate also pass outside a will.
Excluding a child from a will
If you intend to prepare a will that excludes a child, consider documenting your justification. This could be done within your will or by preparing a letter to your family. Speak to a lawyer about the best course of action based on where you live and your personal circumstances.
If one child is seen as being preferred over their siblings, whether by way of gifts, assets distributed outside the estate, or the contents of their parent’s will, this runs the risk that the other children of the deceased see the result as being unfair. They may even accuse a sibling of engaging in elder abuse. It’s important to document your intentions and reasoning.
What about online wills in Canada?
It’s easier than ever to create a will, thanks to fast and inexpensive online services. Although online wills have grown in popularity, and most provinces also recognize handwritten holographic wills as being valid, you may want to work with a lawyer if you plan to disinherit a child or distribute your assets unequally.
When preparing a client’s will, lawyers must meet with the person, assess their decision-making capacity, ensure they are not under undue influence, such as elder abuse, and make sure they understand the implications of their intentions. This process may help support a will if it is contested.
Some provinces, like Ontario, support freedom in how people want to distribute their assets upon death. However, there are still issues to consider. Ontario’s Family Law Act allows a spouse to “elect,” or choose, either their entitlement under the will or their entitlement under the Act (typically, they choose whichever is more). If the spouse was left out of the deceased’s will, the spouse would be entitled to an equalization payment, just as if the couple had divorced. An equalization payment generally involves dividing the increase in assets during the marriage subject to certain exclusions or adjustments.
And if there is no will (called “dying intestate”), the spouse has a similar entitlement under the Succession Law Reform Act to an equalization payment.