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<< back to all ArticlesLife Events to Trigger Updates to Wills, Powers of Attorney, and Personal Directives
You’ve finally completed your will, power of attorney, and personal directive—great job! But estate planning isn’t a one-and-done task. Certain life events mean it’s time to review and update your documents.
Child turning 18
When your child becomes an adult, your estate planning needs change significantly. Adult children can act as executors, attorneys, and agents, and they no longer need guardians appointed for them. Their reaching adulthood may also change your desires for any affiliated family trusts related to your estate planning. You may also want to consider if, based off your child’s decisions for post secondary if they are sufficiently provided for under your will to avoid their making a family maintenance and support claim against your estate.
Divorce or Separation
In Alberta, a divorce or a separation does not automatically revoke a will, power of attorney, or personal directive. There are some provisions that can save a will, but there are not similar things for powers of attorney or personal directives.
The Wills and Successions Act, SA 2010, c W-12.2, (the “WSA”) provides that, if a person dies after getting divorced but before changing their will, any provision naming the former spouse is deemed to have been revoked and the will is interpreted as if the former spouse predeceased; however, this requires a divorce decree from the Courts to be issued. So, while a couple is going through the divorce or separation process, they will still be considered a spouse for the purposes of their will, even if they may not intend that or desire that any longer.
In contrast, the Powers of Attorney Act, RSA 2000, c P-20, (“PAA”) and the Personal Directives Act, RSA 2000, c P-6, (“PDA”) do not have similar provisions. So, if you do not update your power of attorney and personal directive after a divorce or a separation, then you might end up with your soon-to-be ex-spouse acting as your power of attorney and making decisions about your property and financial affairs on your behalf or acting as your agent and making healthcare decisions on your behalf.
New Marriage or Adult Interdependent Partner
Like for a divorce or separation, a new marriage or adult interdependent partner also does not automatically revoke a prior will, power of attorney, or personal directive. While there are provisions in the WSA that just deem those provisions to be revoked and treat the former spouse as having predeceased the testator, the WSA does not provide any sort of recourse then for a possible new spouse or adult interdependent partner. However, a new marriage or adult interdependent partner could make a family maintenance and support claim against your estate.
In addition, since the PAA and PDA do not have similar provisions to the WSA, it may be awkward or uncomfortable for a former or separated spouse to be acting as attorney or agent for you while your new spouse or adult interdependent partner is also in the picture.
Major Financial Changes
Major financial changes in your life like receiving a large inheritance, winning the lottery, going through a bankruptcy, or retiring should trigger you to reconsider your will, power of attorney, and personal directive. The reasons for this is twofold.
First, you need to ensure that any distributions under your will are appropriate and still reflect your wishes. If your specific distributions under your will exceed the value of the estate, things can get complicated and more expensive for your executor.
Second, family maintenance and support claims against an estate depends on what the standard of living the person enjoyed prior to your passing. So, if you receive a large influx of money and you start going on multiple vacations per year with your spouse and children, you need to ensure that your will is drafted to contemplate providing a substantially similar standard of living to possible family maintenance and support claims against your estate (e.g., your spouse and children). For more information about family maintenance and support claims, see this blog post.
New Child or Grandchild
If you birth or adopt a new child, gain stepchildren, or gain grandchildren in your life, you should reevaluate your will, power of attorney, and personal directive to ensure that the new members of your family are properly provided for and have the appropriate guardians appointed. Specifically important with regards to stepchildren, the WSA does not automatically consider stepchildren to be children for the purposes of wills, so you need to ensure that, if you do consider your stepchildren as your children for the purpose of your will and estate matters, that you specify explicitly in your will.
As for grandchildren, it is also important that, if you start acting like a parent for a grandchild, you need to make sure that carefully consider whether that grandchild has sufficient support for that they can enjoy a substantially similar quality of life enjoyed prior to your death. If you do not, that grandchild may be able to make a family maintenance and support claim against your estate.
Death or Disability
If someone in your life dies or becomes disabled, you may need to update your will, power of attorney, and personal directive to ensure that, if they are named in any of those documents, an appropriate alternate is named. If you are the primary caregiver for a disabled person, then you will almost certainly need to ensure that your will is revised to ensure that such a disabled person is appropriately cared for if you die.
Changing Jurisdictions
If you become habitually resident in a new jurisdiction or if you get new assets in a different jurisdiction, you may need to update your will, power of attorney, and personal directive to ensure that they still are operable in the new jurisdiction and your assets in each jurisdiction are properly addressed by your will.
Laws Changing
The laws governing wills, powers of attorney, and personal directives and your estate planning are frequently changing, so it is important to keep up to date on these changes and ensure that, when they do change, you are properly contemplating how it may affect your life.
Conclusion
Not all wills, powers of attorney, and personal directives are equal in their versatility and ability to address all the above scenarios. In general, people should review their estate planning and all the related documents at least every three years; however, each of these events should trigger earlier reviews. If any of the above events happen, our team can review your documents and let you know if you even need to change any of your documents. If you do need to change any of your documents, our team can walk you through how it can be done. Sometimes a codicil is appropriate to make changes to a will; however, sometimes, the needed changes to a will are so extensive that a codicil no longer makes sense.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
