Make way for your Will | The Kids are Alright | Nov. 22, 2011
Updated: Dec 6, 2019
My long-time friend, who I’ll call Theodore, had a heart incident a couple of weeks ago. As you can imagine Theodore got quite a fright. He thought he was a goner. Luckily his widow-maker valve was only 90 per cent blocked so the hospital plumbers were able to string whatever it is they string up through the thigh and put in a stent to keep the blood coursing through Theodore’s body. Theodore is not overweight, but he has been smoking for 40 years. I asked Theodore how his two children reacted to the incident.
“The younger one has been really protective,” he said. “I really like it.”
What I didn’t ask Theo is whether he has an up-to-date will.
The keys words here are up-to-date.
A decade and a half ago my husband and I diligently sat down with our lawyer and drafted a will. I still have a copy. Lucky thing too considering our lawyer’s firm, along with the original copy, burned to the ground.
A lot has changed since we willed a couple of kids to my sister. Not only do we now have five, rather than two children; we also have two older teenagers who have almost reached the age of majority and are theoretically old enough to care for themselves should the need arise. So should the worst happen will the younger three get shipped off to Calgary to live with their cousin or will the elder two risk not finishing university degrees to care for their siblings? What would the courts say?
Regardless I think it’s time to sit down and rethink what we set in stone 15 years ago. In fact we probably should have had at least four different wills by now. Every time your circumstances change you should make amendments. For example, if you change province, like we did for three years when we lived in B.C. If you marry, separate, divorce, change your name. If your executor dies. If you have more children. If any of these things change, you should update your will.
There are a lot of things to think about. First of all, who you choose to execute your will is pretty important. You obviously want someone you can trust to carry out your final wishes. You don’t want to give just anybody the responsibility for divvying up your assets and deciding how your children/dependents will be cared for. Secondly, you want to choose someone who you assume will live as long as you and who will stay a close part of your life. That person should agree to be executor and in case of their premature death, or in case they change their mind, you should also name a back-up.
Same thing goes for your witnesses. Don’t just think that if you get two people to sign who are not listed as beneficiaries or executors that their part is done. They may get called before the courts when the time comes.
If you choose your younger brother who you love dearly but he’s decided to take up residence in the Upper Himalayas with Tibetan Monks, he might be hard to locate when the time rolls around. Best choose someone with a fixed address that you duly note in the file so that they can be easily located.
Also make sure you list the coordinates of beneficiaries so the executor can find them. Full name, address and occupation are good things to write down for all three of these groups.
Recently when a couple we know passed away suddenly leaving behind children, I set up a practice session for the executor of my will. First I explained where to find the key and the safety deposit box. My chosen executor, independent of me, was able to locate the key, the box and the handy-dandy file conveniently labelled Death for easy retrieval.
In that file, this person saw everything from the breakdown of our assets to who gets sent where, to what songs I’d like at my funeral, to how much compensation she gets to be executor. It’s all laid out.
Since we wrote up our will, much to my husband’s dismay, we have accumulated a lot of things. So if we promise a major asset, like our six-foot wooden Grizzly bear named Clover, to one particular child, we’d better write that down in the will. Otherwise there may be disagreements and we’ll be haunted in the afterlife by Clover, the chain-saw carving. If we do not specify who gets what, then is it to be assumed, everything gets sold and the money divided. Are the children going to sell the photo albums? Are they going to sell the signed Sittler jersey? Will they sell the home videos? We all know the closest siblings can fall out over a mangy wall print so why not make it easy on everyone and specify who gets what?
But then what happens to the things we accumulate after the last version of the will is signed and dated? It’s too much to get into here but suffice to say that your lawyer and the Residual Clause will decide what to do with these things.
A final point that came up when we re-examined our will is the difference between the age of majority vs the age of license. Both these ages vary from province to province. The age of majority in Newfoundland and Labrador is 19. The age of license to vote is 18. The age of license to drink is 19. The age of license to drive is 17 (unless the person has completed a driver’s training course and can then get a restricted license at the age of 16). But what is the age of license for living independently in this province? I always thought it was 18, but I’m not sure. Is a judge going to order my 18-year-old son to leave his university courses and pack everything up and move to Calgary with his siblings?
This is a pretty dicey question.
So I challenge every parent out there, to sit down and think about these things. And before the reindeer descend on your roof December 24 I challenge you to get an up-to-date will and establish an executor.
Don’t leave it til the New Year as it will never get done. As you groan and think about the hassle of making an appointment with your lawyer, think of what will happen if you die without a will. The courts will decide how your assets will be distributed and who cares for your dependents. You always imagined your children going to live with Aunt Bessie but the courts don’t have a clue that Aunt Bessie is the children’s favourite and all the rest of the relatives make them eat plain porridge and wear three-piece suits and shiny shoes to school. Think about too the cost of having the courts decide the fate of your estate. Who do you think pays?
Your estate of course. That’s money that could have gone to your children.
Think of my friend, Theodore, on the smoking patch and how close he came to needing that will.
Susan Flanagan is a journalist and mother of five who has put in a call to her lawyer’s office to update her will. She can be reached at email@example.com
Getting outside feedback:
Donna Hewitt from St.Shott's writes: “Thank you for the lovely column on the benefits of getting out for a walk, and the encouragement to get the kids out there as well. I actually pity anyone who does not take advantage of our great outdoors, even if just once on a weekend. I shall have to check out the trail you mention soon, seeing as I am well into getting the ECT completed.
My favourite thing to do after work is walk along the shore road in my community, where I can let my dog off leash and enjoy the ocean. On weekends, nothing can beat clinging to the cliffside, picking those huge cranberries. Happy trails.”