When it comes to your will, clarity is key for those with complex family arrangements.
Canadian society has moved well beyond the “nuclear family” ideal. Few people would bat an eyelid these days at loving family units that include adopted or step-siblings, regardless of the gender, married status or number of parents at the head of the family.
And while it’s great to see so many non-traditional family arrangements celebrated in this country, it’s important to recognize the confusion that can arise in testamentary documents, when the meaning of terms like “child,” “grandchildren” and “issue” are not quite as straightforward as they once seemed.
That’s what happened in a recent case that pitched the children from a deceased man’s marriage against his biological child from an earlier relationship.
According to a court decision, the man’s older biological son claimed that he and his own children were entitled to inherit from the estate, based largely on the terms used in the will, which directed that the residue of his estate be transferred to his “issue” alive at the time of his death.
Notes prepared ahead of the will’s drafting also indicated that the deceased wished 10 per cent of the residue to be invested for the benefit of his “blood grandchildren.”
Despite this apparently inclusive language, the only people specifically mentioned in the will were the two children from the man’s marriage. After considering evidence from the person who prepared the will and the deceased’s own handwritten notes, a judge sided with the children of the marriage, finding that their father had not intended to include the child from his earlier relationship among his beneficiaries.
At the Court of Appeal, a unanimous three-judge panel agreed, confirming the lower court judge’s decision to rectify the will so that the biological son and his heirs were excluded.
Across the province, courthouses are full of cases like this one, with feuding relatives seizing on inaccuracy or vagueness in the deceased’s will to challenge the inheritances left to their fellow beneficiaries.
If you hope to keep your own estate out of the courts, your best bet is to hire an experienced trusts and estates lawyer who can help you ensure the language of the will accurately reflects your wishes regarding gifts, guardianship, funeral preferences and much more, all while minimizing the tax burden on the estate.
The more complicated and valuable your assets are, the more essential it is to obtain sound legal advice before finalizing an estate plan.
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