Will Planning Based on Inappropriate Assumptions

Les & Michelle Kotzer


Les & Michelle Kotzer

Call: Local:      905.881.1500 Ext. 22
Toll Free:        1.877.439.3999
or E-Mail         mkotzer@fishlaw.ca




Many people are tempted to base their Will planning upon preconceived notions and assumptions. Following such a path can lead, sooner or later, to conflict within your family. We would like to discuss some assumptions which should not be used as the foundation of your planning:

1. Do not assume that you have completed your estate planning once you have signed your Will. Your Will is only one aspect of your estate planning. Your Will is only effective when you die, but will not help you if you lose your mental capacity, either through an accident or an illness. To protect yourself against that sort of a situation, you will require a continuing power of attorney for property and the power of attorney for personal care.

2. Do not assume that a parent will outlive a child. We have seen many situations where children have passed away, leaving grieving parents. To make matters worse, many young adults do not contemplate an untimely death, and if that tragedy overtakes them, they leave an estate which is devoid of preparation or planning, yielding unwelcome and unforeseen problems for their distraught parents.

3. Do not assume that your child’s marriage will be permanent. It would appear
that the divorce rate is relatively high compared to what it was in earlier decades
and as a result, marital breakdown must be a consideration in your planning, no matter how remote or painful the thought may be. With this in mind, you might consider whether it is practical to appoint your daughter-in-law or your son-in-law as a backup in your Will, or as a backup on your power of attorney for property or personal care. The result could be your separated daughter-in-law or separated son-in-law is looking after your affairs if you become incapacitated or if you die.

4. Do not assume that all your beneficiaries will be able to inherit, or will want to inherit a particular asset that you own. For example, you may be considering leaving your shares in a business to a particular child under your Will. Your child may be perfectly willing to take the shares in your business, but those shares may be subject to a shareholders’ agreement which compels your estate to sell your shares to your co-shareholders, who have a first right of refusal. You can assume that your co-shareholders will fight aggressively to keep your child from getting involved in the business, if it is in their own best interest to do so.

5. Do not assume that one of your children wants to be your sole executor to the exclusion of his or her siblings. In fact, that particular child whom you wanted may not have the time to devote and may in fact strongly desire that his or her siblings be appointed along with him or her.

6. Do not assume that when you die you are only going to have what you own today. Remember, assets grow. There may be inheritances coming to you from family members. As well, your assets can deplete, so if you are thinking of leaving a sum of money to a particular person, make sure that the amount will be there when you die.

7. Do not assume that your children from your first marriage will get along with your second spouse after your death. Your second spouse is not the parent of those children. Those children may harbour a fear that after you pass away, your spouse will revise his or her Will and completely cut them out.

8. Do not assume that because you hold all of your assets jointly with right of survivor-ship with your spouse, that you do not need a Will. What happens if both you and your spouse die in an accident? The assets may flow from husband to wife or from wife to husband, but they certainly do not flow further under these arrangements. In order to pass the assets to a child or another beneficiary, you will be best served by having a Will in place as part of your planning.

I am a Wills Lawyer with the law firm of Fish and Associates, 7951 Yonge Street. Thornhlll, Ontario (Yonge and Royal Orchard). We are located in a turn of the century home with plenty of free parking. The atmosphere is relaxed and we speak plain language. It you have Powers of Attorney and a Will, I will be pleased to review them for free to make sure they are up to date and not a recipe for a family disaster.

If you do not have Powers of Attorney and a Will, I would be pleased to provide a free Will and Power of Attorney consultation to help you understand this complicated area of law.

To contact Michelle Kotzer you can call 905-881-1500 Ext 22 or email her at mkotzer@flshlaw.ca. Please visit michellekotzer.com or PowerofAttorneyInfo.com for more information.