Is your standard will worth the paper it’s printed on?
- Explaining the problem with a standard will for a blended family
Is your will worth the paper it’s printed on? Maybe not if you’re in a blended family.
I am consulted periodically by stepchildren who have been cut out from receiving anything of an inheritance because their natural parent relied on a standard will.
By “standard will”, I mean the kind where you leave everything to your spouse and if your spouse has already died you leave everything to the kids.
Of course that’s what each of us wants.
If you die first, you want your spouse to continue living in the home you’ve shared and to have access to your combined savings to enjoy their best life.
And when they die, you want everything split equally between the children.
It’s fair.
Wills have been made that formalize those wishes. Those wills have been registered with the Wills Registry maintained by BC’s Vital Statistics Agency.
Each of the children have copies.
You’ve had reassuring discussions with your spouse. Each of you is committed to this estate plan.
You feel confident that a fair share of the wealth you have scratched together over a lifetime of hard work will be inherited by your child.
My goal is to shake that confidence.
Not for the selfish reason of getting more estate planning business. I’m currently having to turn away most folks looking for estate planning help, preferring to focus on the estate administration (probate) side of my practice.
My motivation is to help prevent injustice.
I’ll start with the law.
Absent a legally enforceable written agreement between you and your spouse committing not to change your wills, there is nothing stopping either of you from doing so.
You can make a new will the very next day if you like. And there’s no legal obligation to tell your spouse that you did so.
Your spouse won’t find out even if you register your new will at the Wills Registry. Will registrations are confidential until after death. Nobody but you and your own lawyer can access them unless they’re armed with your death certificate.
But neither you nor your spouse are going to do that.
You love and are committed to each other. Each of you loves your stepchildren.
But feelings change.
Statistics Canada indicates that approximately 40% of marriages end in divorce. That is an understatement because it doesn’t include common-law marriages.
No worries if you and your spouse separate. Your assets will be divided, and you will immediately change your will so that everything goes to your own children.
Consider if feelings have changed by the time of your death, but not to the point that you’ve decided to separate from your spouse.
And what about the next 10, 20 or 30 years before your spouse also dies?
As committed as you and your spouse might have been to your joint estate plan while you were alive, feelings might change after one of you has passed.
The most glaring possibility is a new relationship, something that each of you would want for each other.
The same strong feelings and relationship dynamics that led to the “standard will” estate plan you made with the deceased spouse might arise with the new spouse.
No reduction of feelings for the deceased spouse, but absolutely a change in feelings about the estate plan.
It’s now the new spouse who you want to continue living in your shared home and who you will want to access your combined funds to have their best life after you die.
Another possibility is a change of feelings for the stepchildren.
Are stepchildren likely to maintain as close a relationship with their stepparent after their natural parent has passed away?
Might the natural children at some point try to influence their parent to favour them over their stepsiblings in their estate plan?
Blood is so much thicker than water.
The good news is that there are estate planning mechanisms that can be put in place so that you can have your cake and eat it to, i.e. that allow the surviving spouse to enjoy combined assets until they die while also ensuring that stepchildren get their inheritance.
I’ve written about these mechanisms in previous columns published last year, on May 12th and 19th, June 9th and July 7th, 2024. If you have difficulty finding them, let me know and I’ll help you.
