During Make-A-Will-Month, we often read about the "big picture" reasons to make a will: you want to choose your own estate trustee, ensure that a minor or dependant is looked after, minimize taxes, avoid legal challenges or disputes, determine how your estate will be distributed, etc. Of course, it is important to have a will. But, it is often equally important to update your will and ensure it reflects your current intentions.
Background: Susan's Story
Let's look at Susan's story. Susan executed a will in 2001, leaving the family cottage to Daniel, one of her three children. To equalize between her children, Susan left the residue of her Estate to her other two children, Edward and Farah. As the years pass, properties in cottage country skyrocket in value, and Susan, who is aging, needs cash flow so she can afford her in-home nursing and personal support care. Susan decides to sell the cottage, but does not update her will. For one thing, Susan's lawyer retired, and she just hasn't gotten around to finding a new one. Secondly, she believes that Daniel will get the cash equivalent of the cottage, since her will clearly intended him to receive that value.
What is Ademption?
Unfortunately for Daniel, he is out of luck. In estates law, the principle of ademption operates in cases where a will gifts a specific item, but that item no longer exists or is no longer part of the testator's estate at the time of death. In those situations, the gift will "adeem," or be cancelled.1 Under the terms of Susan's will, Edward and Farah will share the entire residue, including the remaining proceeds from the sale of the cottage, between them. Daniel will not receive anything, which he knows is contrary to his mother's wishes. He considers bringing legal action against the Estate. Such litigation has the potential to destroy Daniel's relationships with his siblings, take years to resolve, and cost hundreds of thousands of dollars.
But what if...?
There is some hope for would-be beneficiaries. The principle of ademption does not apply to specific gifts that are disposed of by a guardian or attorney acting under a power of attorney.2 So, if Susan had a power of attorney in favour of Edward, and it was Edward who sold the cottage while acting as Susan's attorney, Daniel would not be shut out from the gift Susan intended him to have. Instead, he would be entitled to the equivalent value of the proceeds of the cottage from the residue of Susan's Estate.
As our lives change, so do our assets. Estates law is nuanced and it can be complicated, so it is important to revisit our wills and estate plans with a professional who practices exclusively in that area.
1 McDougald Estate v Gooderham, 2005 CanLII 21091 (Ont. C. of A.)
2 Section 36 of the Substitute Decisions Act, 1992, S.O. 1992, c. 30
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