League and Williams Lawyers

Tag: divorce

  • Married or Divorced? It’s Time to Update Your Will

    Married or Divorced? It’s Time to Update Your Will

    Updating your will is very important after major life events like marriage or divorce. These changes usually impact your estate planning goals, and failing to update your will can lead to unintended consequences. When you get married, your priorities and beneficiaries often change. If you fail to revise your will, your assets might be distributed in ways that no longer reflect your wishes. This can create stress and conflict for your loved ones. By proactively updating your will, you can ensure that your estate plan aligns with your current priorities.

    Does Marriage Impact the Validity of Your Will?

    In the past, if a testator became married after executing their will, the marriage would automatically revoke the will. Under section 55 the Wills, Estates and Succession Act, a will is only revoked in certain circumstances. It must be clear that the testator specifically intended for the will to be revoked. This means that after your marriage, your estate plans will remain unchanged unless you make an updated will.

    While leaving your will unchanged may be appropriate for some, it’s common for estate planning goals to change as your family grows. For instance, you may wish to include your spouse as a beneficiary or appoint them as an executor or trustee. By updating your will, you ensure that your estate plan aligns with your wishes and provides for your loved ones.

    If you were married before WESA’s introduction in March 2014 and haven’t executed a new will, your will is still revoked under the old legislation.

    Separation and Divorce

    After a divorce or separation, gifts to an ex-partner in a will are automatically revoked. The remaining arrangements made in the will remain unchanged. Though this sounds convenient for those with simple estates, it remains important to update your will after a separation. Neglecting to update a will after a divorce can lead to several problems. For example, gifts may fall into intestacy if a will-writer doesn’t include a residuary clause. This may result in specific gifts going to beneficiaries who you may not have intended. For more on the rules of intestacy, see our blog post here.

    In British Columbia, people who live together for two or more years in a ‘marriage-like relationship’ are considered spouses for legal purposes.

    A divorce from a legal marriage is not the only consideration which may impact your estate plans. A breakup from a long-term separation may have a significant impact on your estate planning. If the relationship was considered “marriage like” under WESA, separating from your partner may have a similar effect to divorce. Couples are considered spouses if they have lived together in a marriage-like relationship for two years or more.

    Updating Your Will to Reflect a Relationship Change

    While it isn’t often at the top of people’s minds when entering a new relationship or separating from a long-term partner, estate planning is an important aspect of anyone’s plans for the future which must be given adequate attention.

    After a Marriage

    Depending on the nature of your relationship, the structure of your family and existing estate plan, the changes you might make to your estate plan after a marriage may vary, In general, the most common and important changes that people should consider after a marriage include: 

    • Including your spouse as a beneficiary of your estate;
    • Updating the guardianship of your children, if applicable; and
    • Making revisions to your executor, trustee and power of attorney appointments.

    Updating your will after marriage is crucial to ensure your wishes are respected, especially regarding appointments for a power of attorney and personal health representative. By updating your will, you can designate a trusted individual, usually your new partner, to make decisions on your behalf if you lose the capacity to do so.

    Mutual and Mirror Wills For Married Couples

    Spouses usually share a majority of their estate’s assets, and want to work together in their estate planning. Couples can create a mutual will or mirror wills to handle their estate in a way they both agree upon. If a couple decides to create a will jointly through either of these methods, it’s important to consider which one best suits your life, family, and estate planning goals. 

    A mutual will is a single will, created between two people. Will writers should be aware that you cannot change mutual wills after one of the spouses passes away. In some cases, one spouse goes on to remarry after the death of their spouse. If there is a mutual will in place, the spouse cannot go against the deceased’s wishes and change it. At first glance, this appears to be beneficial to both spouses writing the mutual will. However, it can create complications if the surviving spouse has more children after the death of their first spouse. Giving the new children an inheritance from the estate can be extremely difficult because you cannot change the mutual will.

    Mirror wills are two identical wills written by a couple. This differs from a mutual will because a mirror will doesn’t prevent someone from changing their will after the death of their spouse. With a mirror will, the surviving spouse could modify their will. They could disinherit or inherit people who the predeceased spouse would not have agreed with. The surviving spouse is in full control of the entirety of the estate. Spouses with mirror wills can’t be fully certain that their partner will honour their final wishes.

    After a Divorce or Separation

    Under section 16 of WESA, a gift, appointment or power given in a will to a spouse is automatically revoked upon divorce unless the will expresses a contrary intention. This means that, unless you explicitly state otherwise, any assets left to an ex-spouse in your will are to be disposed of according to the laws of intestacy or a residue clause as if the partner predeceased you.

    Although gifts in a will to your former partner are automatically revoked, it’s important to ensure that your precise testamentary wishes are reflected in your estate plan. For this reason, we recommend that people revisit their entire estate plan and reassess their estate planning goals after a separation. Similarly to those revisiting their estate plan after a marriage, those making changes after a separation should consider making revisions to the following at a minimum:

    • Beneficiaries of their estate;
    • Guardianship and custodial arrangements for their children, if applicable; and 
    • Appointments of executors, trustees, powers of attorney and personal representatives.

    If you had previously appointed a partner as your power of attorney, for example, and then divorce without updating your will before you die, you will not have a power of attorney prepared should you unexpectedly lose capacity.

    How to Legally Change a Will in British Columbia

    It is not complicated to execute a new will in British Columbia. Under WESA, when a testator creates a new will, any previous versions of their will are automatically revoked. However, it may be a good idea to inform your loved ones that you have created a new will to avoid confusion. If you are only making very minor revisions to your will, you may opt to use a codicil. This is a document that is attached to your will to make simple amendments to provisions within the existing document. It is usually advisable to create an entirely new will after a marriage due to the nature of the change in your succession plan which often results from marriage. A codicil is not an appropriate tool to amend an existing will if, for example, a couple chooses to have mutual or mirror wills or make arrangements for jointly owned property.

    Reminders for Will Writers

    Updating your will after marriage or divorce is important, and shouldn’t be overlooked despite the automatic protections under WESA. By making regular updates to your estate plan, you can ensure your wishes are clear and enforceable. This helps protect your assets and provides clarity for your loved ones. Whether it’s appointing a new power of attorney, updating beneficiaries, or making other changes, taking these steps now can prevent future disputes and simplify the probate and asset distribution process for your loved ones It can also ensure that, should you lose capacity unexpectedly, a trusted power of attorney or health representative is able to step in right away without waiting for a court appointment.

    If you’re ready to make an update to your will after a major change in your life, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Desk Order Divorce: A Simpler Approach to Divorce in BC

    Desk Order Divorce: A Simpler Approach to Divorce in BC

    Within 50 years of marriage, an estimated 40% of unions will culminate in divorce. The Covid-19 pandemic has only amplified these unfortunate numbers. Although many partners navigate the divorce process amicably, the legal aspects and court appearances can generate unique challenges. Under the British Columbia Family Law Act, couples who have settled the terms of their divorce can avoid a Supreme Court appearance for a divorce order by opting for a desk order divorce.

    What is a Desk Order Divorce?

    Desk order divorces have become increasingly popular among couples due to their faster, more affordable, and simpler nature compared to the conventional divorce process. They can be an expedited route to legal divorce, even for couples with children. Partners can file for divorce, assemble and submit proof of their agreed terms and plans for child support, and receive a divorce order without attending court. This procedure is ideal for couples who have already finalized their divorce terms privately.

    Is This Type of Divorce Agreement Suited to My Situation?

    Couples who have amicably worked through their separation and divorce, agreeing on all terms, can save time and money through a desk order divorce. This method is not suitable for high-conflict situations or partners who have not officially agreed on their divorce terms. So, before initiating the desk order divorce process, both parties should fully understand and consent to the divorce terms. Detailed, signed documents addressing these matters should be provided as evidence to the court. Agreements must include:

    Couples who work cooperatively on their divorce can save time and money while simplifying their divorce process.
    • Division of personal and marital assets
    • Spousal support payments
    • Custody and parenting of children (if applicable)

    Couples with children must present comprehensive care agreements. In divorce cases, courts require proof of thorough financial support arrangements for children, upholding a high standard for child welfare.

    Things to Consider When Filing

    It is crucial to recognize that a desk order divorce should not be considered a DIY or ‘Do-It-Yourself’ route. It’s important to consider that most applications submitted without legal assistance are rejected due to incorrect completion. Further, people often underestimate the level of detail demanded by the court, resulting in surprise and inconvenience when their application is denied. If the submitted documents fail to meet court standards, couples may be required to provide additional evidence or appear before a judge, undermining the advantages of pursuing a desk order divorce. For further information on the filing process, read our article on the process for filing in British Columbia. For more details on the process of filing, read our post on how desk order divorces work in BC.

    If you think your situation could be simplified by a desk order divorce, or need advice on documents you’ve already prepared, contact our experienced family lawyer, Jim Monier-Williams today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • The Will Isn’t Changed After a Divorce: is the Ex-Spouse Still Entitled to the Estate?

    The Will Isn’t Changed After a Divorce: is the Ex-Spouse Still Entitled to the Estate?

    When a married couple gets a divorce, the spouses sometimes forget to change their will to reflect this major life change – to remove the ex-spouse from their will. If a person divorces and doesn’t update their will, their ex-spouse might still receive the gifts mentioned in the old will. The rightful inheritors of this estate must seek legal remedy to correct the outdated will after the testator’s death.

    Revocation of an Ex-Spouses Entitlement in the Will

    According to BC’s Wills, Estates and Succession Act (WESA), a will is only revoked under specific circumstances. The testator revokes a will with the specific intention to do so. Neither marriage nor divorce can revoke a will, but this doesn’t guarantee the divorced spouse will receive the gifts from the outdated will. Further, the WESA states that: if a will-maker,

    1. Makes a gift to a person who was their spouse,
    2. Appoints as executor or trustee a person who was their spouse, or
    3. Confers a general or special power of appointment on a person who was their spouse, then

    the will-writer most likely intended to revoke the gift, appointment, or power of appointment. The estate must distribute the gift as if the spouse predeceased the will-writer.

    This means that ex-spouses will lose their right to anything under their ex-spouse’s will if they have separated. The courts will modify the will to distribute the estate assets as the will-writer intended, even if the will wasn’t updated. The WESA provision describes this as treating the ex-spouse as if they predeceased the will-writer.

    A spouse is presumed to have intended to disinherit their ex-spouse if there is no evidence indicating otherwise.

    If the will revokes a spouse’s gifts, those gifts go to the people already named in the will. The courts will try to adjust the distribution to reflect what the will-writer had intended, minus the entitlement to the ex-spouse. The courts appoint a new executor if the will named the ex-spouse as the executor.

    What Counts as an Ex-Spouse?

    In BC, there are two ways that people can be ruled spouses, when two people are legally married and when two people “[live] with each other in a marriage-like relationship for at least 2 years.” As outlined in the WESA, two people are no longer considered spouses if:

    1. In the case of a marriage, an event occurs that causes an interest in family property to arise, or
    2. In the case of a marriage-like relationship, one or both persons terminate the relationship.

    For the purposes of WESA, a married couple are no longer considered spouses when they have begun the divorce process. In the case of a common-law marriage, when one person terminates the relationship, they are no longer considered spouses. In either of these scenarios, the above procedures will be followed if the will-writer does not update their will to reflect the separation with their spouse.

    Sometimes, people separate from their spouses, but still want to give the ex-spouse part of their estate. In this case, the testator needs to be careful to specifically state in his/her will that he/she would still like their ex-spouse to be included in the will and to receive gifts. Without this provision, the spouse will not receive any gifts even if it’s in the will.

    While this WESA provision exists, it’s always best to avoid this by updating your will in the first place. If you’ve recently gone through a divorce, contact an experienced estate lawyer today to begin fixing your will to accurately reflect what you want done with your estate when you pass away.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Practical Advice on Wills and Estates Planning for Blended Families

    Practical Advice on Wills and Estates Planning for Blended Families

    Many Canadian families do not follow the traditional family structure and are often formed by two people who have children from previous relationships. The 2011 census provides that these “blended families” now comprise 12.6% of Canada’s 3.7 million families.

    The question is: how should estate matters be handled differently for blended families? Standard wills typically distribute all assets to the surviving spouse on the death of other, and on the death of the remaining spouse, to the couple’s shared children. But in the case of a blended family, this distribution may exclude the children of the spouse that dies first. Below are two ways to resolve wills and estates conflicts for blended families: 

    • Stating the children’s inheritance outright on the will – One solution is to benefit the children and spouse under the will, rather than solely the spouse, with any assets being held in trust for any minor children until their age of majority.
    • Preparing a mutual will – Alternatively, mutual wills are written with the consent of both parties and cannot be changed unless there is mutual agreement. This means that when one spouse dies, the other cannot revise the will to deprive the other’s children of their inheritance.

    Planning Estates Pro-Actively

    People with blended families should pro-actively plan the distribution of their estate. It is important to consult an estate planning lawyer to ensure that your will accurately reflects your wishes.

    Disputing an Unfair Estate

    Sometimes as a result of failing to pro-actively plan for the specific needs of blended families, children or step-children may be treated unfairly and may be deprived of their fair share of the estate of their parent. When a child or step-child is excluded from the estate, they should discuss their situation with an lawyer who is familiar with BC Estate Law and can take action to ask the court to change the will in order to treat all rightful beneficiaries fairly. Lawyers at League and Williams offer free consultations on estate disputes and may be contacted at 250-888-0002 or by email at info@leaguelaw.com.

    Source: Stepfamilies make up 12.6% of Canadian families, CBC News

    Source: Blended Families, BC Local News