Testamentary ambiguity can arise at any time.
In an ideal world, we would all make our wills on the day we die, so that every one of the choices we make about our assets, beneficiaries and executors would still make perfect sense when the time comes for the document to kick into action.
But the world doesn’t work like that. As time moves along, circumstances change: relationships form and dissolve; assets grow and deplete; friends, family and beneficiaries die.
When you think of a typical estate litigation case, you probably picture a set of feuding relatives challenging each other’s inheritances in an explosion of familial tension built up over years.
But there are just as many cases where an otherwise peaceful estate administration is held up by small issues in the language of the will, creating confusion over the testator’s intentions that a judge must resolve. In many ways, the fact that the problems could have been avoided altogether with a simple will update makes these cases more upsetting than those where the testator’s turbulent family dynamics meant a blowout in court was inevitable.
I recently came across one such case, involving the surviving family of a Michigan man whose estate included a cottage property in Ontario. The deceased’s will provided for its division between his four children and one grandson. It also accounted for the potential early death of the grandson’s mother, explaining that if she predeceased the testator, then her share should be divided equally between her own children, except for the grandson already named in the will.
The trouble arose when a different child of the testator – one of his sons – predeceased him. Without a specific reference in the will, it was unclear whether the dead son’s share of the cottage should pass on to his three children, or if it should be redistributed among his siblings and nephew who were named in the will.
After a hearing in court, the judge decided that the testator intended a beneficiary’s share to pass to their children if they predeceased him, just as he had described in the case of his daughter.
However, the decision also gave an insight into the eye-watering cost of a court action in Ontario, as the judge ordered costs of $45,000 in favour of the executor who brought the application. The money will come out of the estate itself, eating into the amount due to all of the deceased man’s heirs.
This case provides an excellent reminder of the value of regularly updating your will. I recommend that my clients revisit their estate plan every couple of years, but if you can’t to that kind of frequency, then big life events – including the death of a close relative – or major relationship changes should prompt an update to your will. That could include the birth of a child, marriage, divorce, or a major change in net worth.
Still, it’s not just changes in your own situation that you should be concerned about: the lives of your preferred executor and beneficiaries will evolve over time, and they may not always be as suitable in those positions as they were when you first picked them.
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