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The Importance of Leaving a Will

Posted: 03/05/2013 8:48 am

Even carefully drawn wills can become the subject of disputes and litigation. Having a poorly drafted will, or no will at all, increases those odds exponentially. Despite this, over 50 per cent of Canadians do not have their testamentary wishes written down in the form of a will.

The reasons for this vary depending on individuals but we often come across a similar set of excuses. For instance, young Canadians often feel that they have not amassed significant enough assets to warrant an estate plan. Some people also have will drafting very low on their priority list and the refrain of being too busy and not having enough time and/or resources is all too common.

Some individuals also make assumptions as to what happens when you die without a will (legally referred to as 'intestacy'). They assume that their assets will pass to their spouse, children or next-of-kin when this is not necessarily the case.

Aside from ensuring that your loved ones will not have to struggle to deal with what you leave behind, drafting a will is a good opportunity to examine your personal finances. It allows you to consider your assets and liabilities and to gain a more accurate idea of where you stand financially.

Gaining an understanding of your finances is one of the reasons why it is a good idea to keep your will up-to-date once you have gotten around to drafting one. We often recommend to our clients that they review their testamentary documents every five years. Over this period, a lot can change. As we have seen over the last few years, the economic climate can fluctuate dramatically, which can have a significant effect on investments, revenues and the value of property. It is important to avoid the untenable situation where your testamentary gifts don't match up with your assets.

We are also often asked about do-it-yourself will kits as a means of avoiding expensive lawyer fees. These kits, however, are not an adequate replacement for a trained legal professional who is familiar with the nuances of estate planning. As each individual's situation is unique, trying to draft a comprehensive estate plan with a one-size-fits-all solution is likely not a good idea. A well-trained estate planning lawyer will be able to ensure that the rules surrounding the formalities of execution at the time of signing and the language used in the document satisfy statutory and legal requirements. While some kits are better than others, they cannot replace a lawyer's knowledge and experience.

There currently exists an excellent regime whereby lawyers, estate planners, accountants, insurance agents and other allied professionals work together with the client to create a plan that makes sense both from a tax standpoint and from the family dynamics perspective. Utilizing these professionals to create a well thought out estate plan can act as a cheap form of insurance for your loved ones who could be otherwise drawn into expensive and stressful litigation. Inadequate, faulty wills inevitably increase the stress and cost, for those you leave behind.

It is important to remember that more than just good documentary planning is needed to avoid family disputes and litigation. Historically, the whole estate plan was structured without the input of those who are most affected by the result, namely, the family members. It is the additional component of the family dynamics that is a significant instigator of estate litigation. In order to avoid undesirable litigation, it is wise to sit down with your family members and discuss your testamentary wishes openly and honestly. Even though this process can be difficult and uncomfortable for those involved, the emotional and financial expense that can come down the line is almost always worse.

Ian Hull and Suzana Popovic-Montag are partners at Hull & Hull LLP, an innovative law firm that practices exclusively in estate, trust and capacity litigation. To watch more Hull & Hull TV episodes, please visit our Hull & Hull TV page.

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