Details matter when you’re drafting a will.
The case list in Ontario’s Superior Court is full of feuding family members who have seized on inaccuracies and ambiguities in a loved one’s will to challenge the inheritances left to their fellow beneficiaries.
But mistakes in a will don’t always need to spark a fight before they end up in court. Sometimes an executor will ask the court for help interpreting a will because a drafting error makes it impossible to know for sure what the testator intended.
These cases are never quite as tragic as an all-out family war, but they share some of the same key features associated with court proceedings – wasted time and eye-watering expense.
The worst thing about this kind of litigation is just how unnecessary it all is. In many cases, the cost of the court action – which typically comes out of the estate itself, eating into the amount due to heirs – could likely have been avoided with a little more attention to detail in the drafting of the will.
I recently came across one such case, involving a testator whose will directed the transfer of funds in her Nesbitt Burns Registered Retirement Income Fund (RRIF) account to a testamentary trust set up for the benefit of her great-granddaughter.
The only problem was that the deceased’s only RRIF was not a Nesbitt Burns fund. In addition, the account number provided in the will was not associated with any RRIF, but belonged to a BMO bank account the woman had closed before drafting her will.
To complicate matters further, an earlier will that correctly identified the RRIF designated one of the deceased woman’s daughters as the beneficiary.
Using what lawyers call the “falsa demonstration” principle – an elaborate name for the correction of a misdescription – the judge in the case agreed with the executor of the estate that the testator meant for the contents of her RRIF to go to her great-granddaughter in trust, and that this overrode the instruction in the previous will.
The judge’s ruling does not appear to have met any resistance from the deceased woman’s daughter, but it’s easy to see how a less harmonious family could have descended into further litigation over the mistake.
Whatever relations are like in your own family, an experienced trusts and estates lawyer can help you ensure the language and fine details of your will accurately reflect your wishes regarding gifts, guardianship, funeral preferences and much more, all while minimizing the tax burden on the estate.
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