Wills & Estate Law

Q: I'm getting older. What documents should I have in place?

A: If you are getting older or if you have dependants, there are three documents you should prepare to help your loved ones manage your affairs.

• Enduring Power of Attorney: Your Power of Attorney grants authority over your financial decision making to someone you trust in case you become unable to communicate or incapable of giving consent. A Power of Attorney may also be used to grant full or limited powers over your financial affairs when you will be travelling or otherwise unavailable.

• Last Will: Your Last Will describes how to distribute your estate after you die.

• Representative

Q: Why should I have a Will?

A: Will enables you to:

choose who will get your property after your death;

choose how your property will be divided among your various beneficiaries;

give specific items of property to specific people;

appoint someone you trust to administer your estate; and

appoint a guardian for your minor children.

Q: If you die without a Will, what will happen?

A: If you die without a will, your property will be distributed by a court-appointed administrator according to statutory rules for "intestate succession." Your property will be divided among your surviving spouse, children, and possibly other relatives in whatever manner the law of your jurisdiction specifies. You will not have a chance to give property to non-relatives or to exclude relatives. Additionally, if you have no relatives, your property will go to the state rather than to a friend or charity of your choice.

Q: When should I change my Will?

A: It is up to you to decide when to change your Will. You should review your Will from time to time to ensure that it still meets your needs and that your property will be distributed according to your wishes.

Q: Do I need a Will if I have a Power of Attorney?

A: Yes: a power of attorney for financial matters provides your chosen agent with the power and authority to deal with your property and make financial decisions for you only while you are alive. A power of attorney automatically ends on your death. Consequently, you need a Will to specify how you want your estate distributed on your death.

Q:  What are Mirror Wills?

A: Mirror wills are used to allow two people to create almost identical wills which leave everything to each other. A husband and wife (or any other couple) can make "Mirror" Wills by each writing a Will that leaves everything to the remaining spouse. Often, there is a clause that provides that if the husband and wife die at the same time or within thirty days of each other, then everything goes to the couples' children or if there are no children, to a named beneficiary.

Q: How do I address step-children?

A: Stepchildren are not your natural heirs unless you have legally adopted them. They are not included if you leave property to "all my children". If you want to leave something to your stepchildren, you must name them as beneficiaries in your Will.

Q: Do I have to distribute my estate to all my children?

A: You should provide for all of your children in your will. In BC, a disinherited child has the right to challenge the will by commencing a wills variation claim. If the claim is successful, the court will order that the will-maker’s estate be distributed in a manner that is different from what was stipulated within the will. 

If you wish to disinherit a child, you should consider preparing a memorandum to your will which states the reasons for disinheriting the child. Our lawyers have extensive experience in estate planning and can assist you in preparing your will and memorandum. 

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