Separation: A Good Time to Rewrite Your Will

A very good time to write or rewrite your will is after you have separated from your spouse or common law partner. If you have an existing will, it likely lists your spouse or partner as a significant or even sole beneficiary. This is great when you’re in love, but when the relationship is falling apart, you don’t necessarily want to leave everything to the person who took half the furniture and your favourite DVDs. Even if you die without a will, your spouse or partner may be entitled to a share (or all) of your assets under intestate succession legislation, such as the Intestate Succession Act in Alberta. Again, think of the DVDs you’ll never watch again and the favourite chair that’s gone forever because of this person. 

All kidding aside, writing or rewriting a will isn’t about revenge as much as it’s about changing priorities. If you are single or separated and have children, you usually want your assets to go to your children. If you don’t have children, you probably want your assets to go to your parents, siblings, or nieces and nephews. You may still love your ex, but that love will surely diminish over time. That person will likely move on and find another spouse or have other children. If you leave something to your ex, there is a good chance you’ll be enriching his or her new partner and children to the detriment of people you care about.

That being said, if you have child or spousal support obligations, your estate may be liable to your ex for these obligations on your passing. Most wills have clauses about paying debts, taxes, etc. You may wish to consider specifically addressing ongoing support obligations in your will. At any rate, you’ll want to have a current will that reflects your current priorities.

Be Wary of Joint Ownership

Joint ownership is a form of property ownership that involves owning property with another person. In Alberta, joint ownership is distinguished from another form of ownership known as tenancy in common. What distinguishes joint ownership from tenancy in common is that joint ownership has a special right attached to it – the right of survivorship. The right of survivorship means that the person who lives the longest eventually becomes the sole owner of the property in question. With tenancy in common on the other hand, when you die your estate still retains ownership of the share of the property that you owned while alive. 

Joint ownership can be a useful tool in estate planning, but it can also lead to problems in certain circumstances. It is often used as a means to allow property to “bypass probate”. Property that is owned jointly will – in most cases – not for part of the estate of the first person to die. The most common use of joint ownership is when purchasing property as a married couple. Typically spouses (at least in a first marriage) intend for property to pass to the surviving spouse on the death of the first spouse. That is not always the intention, but it is a very common intention. 

However, when other people, such as business partners or siblings, purchase property together, it is rarely the intention that the survivor should become the sole owner of the property. Also, when someone remarries who has children from a previous relationship, that person often wishes to have his or her children receive something substantial when he or she dies. By owning property jointly with someone other than a first spouse, you run the risk of effectively disinheriting your surviving children. 

This is not to say that you should never own property jointly with anyone other than your first spouse. However, if you are contemplating owning property jointly, you should fully consider the legal effects of such a choice.

Calgary Wills and Talking to Your Children about Guardianship

For young parents, or for that matter for parents of young children, probably the most important consideration when writing a will is who should be appointed as a guardian. There are many important and sometimes complicated factors that go into picking a guardian: closeness of relationship, physical proximity, maturity, financial security, immigration status, etc. However, a good litmus test is actually quite simple: Do your kids like this person? 

If the answer is yes, then you may have the perfect guardian. If the answer is no, then this person is a horrible choice as a guardian and you should not consider this person further. Keep in mind that courts, at least in Alberta and in other Canadian provinces, are not compelled to honour your choice of guardian. The legal test is what’s in the best interests of the child. It’s as simple as that. And who decides what’s in the best interests of the child? That too is simple. It’s that man or woman wearing a judicial robe. Your thoughts as a parent regarding what’s good for your children will be given some weight. However, if you pick someone your children clearly detest, a judge will in all likelihood not force them to live with this person.  

Admittedly, this might not be the sort of conversation you can have with a five-year-old, except perhaps indirectly. However, even slightly older children should be able to express their preferences for guardianship quite clearly. Listen to them. If they like a family member or friend, they have probably bonded with that person to some degree. If they don’t like someone, they haven’t bonded with that person. The guardian is someone who should always have your children’s best interests at heart. If this person hasn’t developed some connection with your kids, he or she is not right for the job.