Canada: When To Change Your Will

Last Updated: April 18 2018
Article by Michael Larsen

Often, after a will has been made, the circumstances that led a person to make their estate plan in a particular way will change, and a new will (or a codicil updating an old will) becomes necessary.

The following is a (non-exhaustive) list of the life events that may prompt an individual to reconsider their current will:

Marriage. Previously in British Columbia, the act of marriage would automatically revoke all the newlyweds' prior wills. This meant that, unless the spouses created new wills, the property of both would pass on intestacy, under which a surviving spouse would receive a preferential share of the estate of their deceased spouse. This is no longer the case, however, and existing wills now remain valid after marriage. Therefore, to ensure your new spouse inherits, drafting a new will may be necessary.

Living Together.  Under the Wills, Estates, and Succession Act ("WESA") in British Columbia, a person becomes a spouse after two years of living with someone in a "marriage-like relationship". If there was no will in place when that occurred, a new spouse could then inherit part or all of their partner's estate under the rules of intestacy. Drafting a new will to reflect the parties' actual wishes, if different from the intestacy rules, may be appropriate in these circumstances.

End of a Relationship. Under WESA, a former spouse that is still named in a will, as a beneficiary or an executor, is treated as if they had pre-deceased the testator, unless a contrary intention appears in the will. This generally means it must be made explicit in the will that a gift or executorship to a spouse survives the breakdown of the testator's marriage, or marriage-like relationship, for that to occur. If this is the case, a new will, or a codicil, may be necessary upon the breakdown of a relationship.

Children. Updating a will may be necessary upon the birth or adoption of a new child.  You can also name a guardian, or guardians, for your child in a new will. Stepchildren in British Columbia do not inherit under the rules of intestacy outlined in WESA, nor are they entitled to apply to vary a will that does not adequately provide for them. If you wish to ensure a stepchild receives a portion of your estate, make a new will to include them. Also, people may wish the change the proportion of their estate that is gifted to their children when they become adults, or become self-sufficient.

Death Of A Beneficiary. If one of your beneficiaries predeceases you, you may wish to reconfigure the scheme of distribution under your will, to provide for different beneficiaries, or for a different percentage of the estate to go to the surviving beneficiaries.

Change of Beneficiaries/Executors. If you decide to change your beneficiaries, guardians, or executors, you will need a new will.

Change In Value Of The Estate. If you acquire new property, become significantly wealthier, or lose property or assets, consider revising your will. Beyond a certain value of assets, a testator may also wish to explore the use of inter vivos trusts, such as spousal or alter-ego trusts, to take assets out of their estate, and prevent excessive probate fees. Such trusts may also entail significant tax advantages.

Change In The Nature of Your Property/Start of A Business. Often, distribution schemes under a will can become highly unequal where different types of assets are gifted to different beneficiaries. For example, a gift of company shares to one child and a gift of real estate to another child may be equal when a will is made, but differ greatly in value at the time the will becomes effective. A new will may be appropriate in light of changes to the nature or value of one's estate property.

Move To Another Province. While most provinces have similar rules regarding the requirements for a valid will, and similar property distribution schemes, there are some important differences between them that may have unintended results if a person moves provinces without updating or changing their will.

With all of the above, it is prudent to consult a lawyer or professional to ensure that the appropriate will or trust is drafted to ensure your intentions are appropriately documented.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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