by: Erin Naylor, LLB
It is quite common for those going through separation or divorce to approach Wills and Powers of Attorney as something to do after the family law matter is complete. This is such an understandable feeling – there is already so much on your plate, not to mention you are probably dealing more with the legal system now than you ever have. Why on earth would you want to delve into questions of mortality at the same time you are dealing with a divorce!
To this I have good news and bad news. The bad news first – there are many very important reasons not to put the Will and Powers of Attorney off. One of the primary reasons is something none of us wants to think about – something could happen before the family law matter is complete. By this, I hate to say, you could become incapable, or you could pass away. By Ontario law, if someone is legally divorced and dies without updating their Will, their Will is read as if their ex has predeceased them – therefore, the executorship reverts to the alternate executor, the beneficiaries are the alternate beneficiaries. But, if someone is going through the process of separation or divorce and they die, and they have named their ex as the executor and beneficiary, that Will stands as-is. The result is even more dire for Powers of Attorney – neither Powers of Attorney for Property nor Powers of Attorney for Personal Care are revoked or changed even by divorce.
The good news is that preparing new Wills and Powers of Attorney are not as daunting as you may think. Honest. I can’t say how many times I have finished the signing meeting with a client who is also divorcing, and they turn to me with a sigh of relief and say “that was so much easier than I thought!” There are undoubtedly a number of reasons for this, but I think that one is that this is your chance to run the show. No wondering what the other party’s response to anything will be, it is entirely the act of recording your wishes. (A small caveat to this is making sure that the people you want to name as executor and attorneys are up for the job!) A second common reason seems to be that, at least for most people, the fact that their assets are in a state of flux really doesn’t have an effect on their Will itself. There are certainly discussions to have, particularly around beneficiary designations, registered education savings plans, etc., but they don’t get in the way of the Will being completed.
If you are going through a separation or divorce, I strongly encourage you to reach out to your lawyer about updating your Wills and Powers of Attorney, now. There’s no time like the present!
If you don’t have a lawyer, or don’t have a lawyer who practices in Wills and Estate Planning, please reach out, and I would be happy to speak with you.