Being aware of will limitations

Before meeting with a lawyer to begin drafting your will, it is important to be aware of certain limitations on your instructions to your personal representative.

Before meeting with a lawyer to begin drafting your will, it is important to be aware of certain limitations on your instructions to your personal representative.

Spouses and Dependants

There are two ways your last wishes may be limited when dealing with spouses and dependants. The first limitation is in the form of specific laws in place in Alberta that protect the interests of a spouse dependant upon death. The Dependants Relief Act allows the Court to redistribute your estate to recognize any claims by a dependant, which is defined as a spouse, adult interdependent partner, children under the age of 18, or children over the age of 18 who suffer from some form of disability preventing them to earn a livelihood.

The court has the discretion to award a lump sum payment, periodic payments or transfer property out of the income or capital from the estate. The Dower Act provides that an individual may not gift the matrimonial home to anyone without the consent of his or her spouse. This ensures the surviving spouse is to be granted, at minimum, a life estate in the home.

The Divorce Act states the importance of a testator to provide “adequate, just and equitable” support after death. The second way a testator may be limited when dealing with a spouse or partner is through common law remedies, for example the principle of a constructive trust. Essentially this enables a spouse or partner who has contributed to the estate, either directly or indirectly, to challenge a Will through the courts in an attempt to obtain their entitled share.

Funeral and Burial Instructions

The testator has the right to make choices regarding the disposal of his or her remains by providing funeral and burial instructions. However, it is important to note that the testator’s personal representative has the right to make final decisions when dealing with these instructions. Generally, a will is not read until after the funeral has taken place and as such it is usually advisable for an individual to leave these instructions with their personal representative in a separate document.

Marriage

It is important to note that a will is generally revoked upon marriage. This means that once a person gets married any previous will they had in place will become invalid. The exception to this is if the will is made specifically with clauses that stipulate the testator is contemplating marriage.

Gifts to Minors

While the testator can stipulate that a gift is to be left to any individual that is over the age of 18, a gift can not be left to those under the age of 18. The testator must be aware of this and be prepared to appoint a trustee to hold any funds for the benefit of any minor until they reach the stipulated age. Also note that a testator can stipulate that a gift not be given until the beneficiary has reached a certain age, such as 25, or it can be given out in portions. One example is giving 50 per cent 21 and the remainder at 25).

It is very important to realize the limitations placed on you when drafting a will. This can avoid your will being challenged and altered by the courts after your death, which not only alters your last wishes but also can be a very costly and time consuming process.

Legally Speaking appears every second week in LIFE. It is intended for information purposes only. Readers with a specific legal problem should consult a lawyer. This week’s column was written by David Brant, of the Red Deer law firm Duhamel Manning Feehan Warrender Glass. Brant can be reached at 343-0812 or at www.reddeeraltalaw.com