What’s the worst that could hap­pen if I don’t have a valid will?

In Brief

Estate plan­ning is not some­thing we gen­er­al­ly think about as we go about lead­ing our busy lives. But what many of us fail to see is that neglect­ing to car­ry out this process could have seri­ous ram­i­fi­ca­tions for our fam­i­lies and their futures. 

Hav­ing prop­er­ly con­sid­ered and draft­ed estate plan­ning doc­u­ments in place presents a range of sig­nif­i­cant ben­e­fits for you. For exam­ple, sol­id estate plan­ning reduces the pos­si­bil­i­ty of dis­putes over estates, min­imis­es the amount of tax paid by the estate’s ben­e­fi­cia­ries and avoids unnec­es­sary delays, expens­es and uncer­tain­ty in the dis­tri­b­u­tion of the estate’s assets.

Below are some cas­es we have wit­nessed when peo­ple have failed to put the right plans in place.

Rules of Intestacy

A hus­band and wife own a medi­um sized fam­i­ly busi­ness. They have four chil­dren, two sons who work for the busi­ness, who work for less than mar­ket pay and the promise of inher­it­ing the busi­ness, and two daugh­ters who do not have any ties to the fam­i­ly business.

The par­ents die unex­pect­ed­ly and it’s dis­cov­ered that they had not includ­ed the two sons as suc­ces­sors to their busi­ness in the case of death in their will. The sis­ters now want to sell their share of the busi­ness, with the sons hav­ing no real legal right to con­test. The sis­ters sell their share of the busi­ness to a third par­ty, mean­ing the busi­ness is no longer sole­ly owned by the fam­i­ly. The cir­cum­stances caused a fam­i­ly rift with the sib­lings no longer talk­ing and the sons left to work with the new busi­ness part­ners to work out remu­ner­a­tion struc­tures and cor­po­rate gov­er­nance structures.

Inad­e­quate Will

A hus­band, wife and their son are in a car acci­dent, the par­ents don’t sur­vive and the son is left men­tal­ly dis­abled as a result of the injuries he sus­tained. Upon the parent’s death, all assets are trans­ferred direct­ly to the son, with no trust in place.

As the assets from the will are legal­ly gift­ed to the son in his own name, the son los­es his rights to Cen­tre­link dis­abil­i­ty ben­e­fits and his health care card.

The son is then befriend­ed by his car­er who con­vinces him to trans­fer the assets to her to take care of and he is left with nothing.

If the par­ents of the son had put in place a tes­ta­men­tary trust, it would have mit­i­gat­ed the risk of the son being left with noth­ing. The assets would have been man­aged appro­pri­ate­ly and allowed the son to live as com­fort­able a life as his cir­cum­stances would allow and would have also per­mit­ted him to have access to health and Cen­tre­link benefits.

Change of Circumstances

A man and woman had been mar­ried for 20 years. Dur­ing their mar­riage they had each writ­ten valid wills and put in place endur­ing guardians and endur­ing pow­er of attor­neys, each appoint­ing the oth­er as their attor­ney and endur­ing guardian. The cou­ple decid­ed to legal­ly sep­a­rate and short­ly after the wife fell ill.

The cou­ple had not amend­ed their wills upon their sep­a­ra­tion so the hus­band was still the legal endur­ing guardian and endur­ing pow­er of attor­ney of the wife. Despite no longer being mar­ried, the estranged hus­band had com­plete con­trol of the deci­sions made on behalf of his estranged wife, includ­ing not only finan­cial deci­sions but also deci­sions to be made about the med­ical treat­ment of his estranged wife.

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